Does the Temporal Framework Affront Indigenous Rights in Brazil?

“The Temporal Framework has existed since 2009, with the judgment of the Raposo Serra do Sol case…”

Pedro Puttini Mendes is a lawyer and legal consultant at P&M Advocacia & Consultoria Ambiental, Agrária e Imobiliária, M.Sc and law graduate from Universidade Católica Dom Bosco.

Mendes is a professor of agrarian and environmental law, a founding member of the Brazilian Union of Environmental Advocacy.

Pedro Puttini, lawyer at P&M

AgriBrasilis – Does the Temporal Framework affront indigenous rights?

Pedro Puttini – There is no such affront. One of the main arguments against the Temporal Framework is that there would be legal chaos and conflicts in already pacified areas, because of a supposed revision of demarcated areas. This argument is not true, since the 1988 Constitution provides that “the law will not harm the acquired right, the perfect legal act and res judicata”.

The Temporal Framework has existed since 2009, with the judgment of the Raposo Serra do Sol case, linked to other cases through Ordinance No. 303/2012, Ordinance No. 415/2012 and Opinion No. 001/2017 of the Attorney General of the Union, responsible for complying with decisions of the Supreme Federa Court in Brazil. There has never been an affront to rights since that case.

Another argument points out that the Temporal Framework would mean the end of land demarcations, as the indigenous people will have to prove that they were there before the promulgation of the Constitution. They claim that this would mischaracterize article No. 231 of the Constitution because they have been in the country since before 1500 and that this would be an exclusion from the historical process of Brazil. However, there will be no end of demarcations. There will be objective criteria for the demarcations. The current criteria are subjective, coordinated by Funai and anthropologists with an interest in the procedural instruction, violating basic procedural precepts, since there is an obvious conflict of interests, even because of legal duty.

It is appropriate here to question those who intend to carry out historical repairs (affirmative actions) in regions where land use has been consolidated: will these areas simply be demolished, withdrawn or converted into a pre-colonization state for “productive activities, essential for the preservation of environmental resources necessary for well-being and necessary for physical and cultural reproduction, according to uses, customs and traditions” of indigenous peoples, as determined by article No. 231, paragraph No. 1 of the Constitution?

It is completely incoherent, in addition to being unconstitutional within the current Brazilian territorial planning, to allocate indigenous people in areas that have already been occupied for many years, with other uses. Brazil has a territorial plan with completely random allocations of land assigned to the Government, such as conservation units, settlements, military areas, indigenous lands and other public policies. This territory should be designed for all Brazilians, to generate employment, income and food supply.

The use of indigenous lands for purposes other than their “usages and customs” (soybean, livestock, etc.), to bring socioeconomic development to indigenous communities, establishes a fine line between the flexibilization of the use of indigenous lands and the negation of the true meaning of the article No. 231, §1 of the Constitution.

Enough with the polarization of discussions, as if there were only “landowners”, or agribusiness, versus indigenous people. Demarcations based on ancestry have been selective, excluding urban areas or areas with low soil production capacity, except in those cases where, in order to preserve existing natural resources, it is necessary to demarcate or expropriate. There are other forms of creation of indigenous lands allowed by the Statute of the Indigenous, and these lands are far from extinction. What is actually needed is planning.

AgriBrasilis – What is the Temporal Framework on the demarcation of indigenous lands, Bill No. 490/07?

Pedro Puttini – The “Temporal Framework” and the “Bill No. 490/2007” are different issues. Bill No. 490/2007 encompasses other points, in addition to the Temporal Framework itself, such as the exploitation of indigenous lands, and these points should be discussed at another time. It is necessary to prioritize the regulation of the Temporal Framework to end conflicts involving the demarcation of indigenous lands.

The Temporal Framework is not just a legal thesis, but it is the orientation of article 231, paragraph 1 of the Federal Constitution, interpreted by the Supreme Federal Court. Only the indigenous lands that these peoples occupied or disputed (“relentless dispossession”) until the enactment of the Constitution are demarcated. This interpretation happened in 2009, when the Supreme Federal Court judged the Raposo Serra do Sol case; one must just read what is in the judgment that defines the timeframe and indicates the reasons for its existence.

Because of the lack of specific legislation to define “what is” the “Temporal Framework” that defines “land traditionally occupied on a permanent basis”, the Supreme Federal Court did so during the Raposo Serra do Sol case.

Incidentally, on that occasion, to justify the unnecessary attribution of binding effect to other cases, the Supreme Federal Court decided that that decision would have “intellectual and persuasive force of the highest Court in the Country”, now failing to demonstrate the reasons for overcoming or its distinction from this precedent to judge it once again.

AgriBrasilis – The Bill text, in its 3rd article, describes that there are three types of indigenous lands. Why are these distinctions important?

Pedro Puttini – These distinctions are important to clarify that the Temporal Framework of 10/05/1988 only refers to the lands mentioned in article 231, paragraph 1 of the Federal Constitution, that is, “the lands that traditionally occupy, […] permanently inhabited by them”.

The Temporal Framework is not and will not be the end of indigenous lands in Brazil, as the Statute of the Indigenous provides for the creation of indigenous lands in two other ways, namely “reserved areas”, also known as “indigenous reserves”, following the example of the Xingu , created under the category of reserve, park or indigenous agricultural colony; and also the recognition of indigenous lands as “land under the domain of indigenous communities”, those fully owned by the indigenous or by the indigenous community, through any of the forms of acquisition of domain, under the terms of civil legislation, as well as by “indigenous usucaption”, when they are occupied for ten consecutive years, in the case of an area smaller than 50 hectares.

AgriBrasilis – How does the Temporal Framework relate to the 1988 constitution? Is this project compatible with the constitutional text?

Pedro Puttini – The Temporal Framework is absolutely compatible with the constitutional text. As mentioned, it is related to the 1988 Constitution, given the need to clarify the expression “land they traditionally occupy, […] permanently inhabited by them”, that has not been done so far through legislation, but only by the judiciary, that expressly said “[…]Lands that they traditionally occupy, be careful, and not those that they come to occupy. Neither do the lands already occupied at other times, but without sufficient continuity to reach the objective milestone of October 5, 1988”.

The “indigenous theory”, supported by indigenists, is outside the Federal Constitution and in contradiction with the Raposo Serra do Sol case. This theory states that the right of indigenous people over traditionally occupied lands would be innate, congenital, prior to the very creation of the Brazilian State, that would not require legal provision because of the impossibility of limiting an ancestral right. According to the theory, the federal government should demarcate and protect all lands where indigenous people were present in the distant past. Does this seem coherent?

This anthropological theory with a supposedly legal bias is forbidden by legislation, characterizing what we call repristination, that is, the reestablishment of the validity of a revoked law by repealing the law that revoked it. In this case, it is a law or a right that never existed. Resurrecting rights, as the theory intends, is not possible. The Law of Introduction to the Norms of Brazilian Law determines that a norm will only be valid again if explicit, expressed in another norm. There is no automatic repristination, let alone created by courts.

AgriBrasilis – What are the pros and cons of this bill and the possible consequences of its approval?

Pedro Puttini – The analysis made of this situation is restricted only to the “Temporal Framework” and not to the “Bill No. 490/2007” as a whole, as the Bill encompasses situations that go beyond the Temporal Framework.

There is a great need for approval of the Temporal Framework, that would be beneficial to territorial planning, legal security and the end of land conflicts that increased in the country in 2023.

AgriBrasilis – What stage is the project in and what steps are necessary for its approval? Do you think the project will be approved?

Pedro Puttini – The bill is now no longer called Bill No. 490/2007, having been sent to the Senate, gaining a new number, and being processed as Bill No. 2903/2023 that, today (06/21), is in the Senate’s Agriculture and Agrarian Reform Commission, since 06/02/2023, under the report of Senator Soraya Thronicke.



Brazilian Agribusiness Must Lead Fight Against Climate Change