On Thursday, the Federal Supreme Court of Brazil invalidated a legislative proposal 9-2 regarding the temporal boundaries for demarcating indigenous lands.  The judges ruled against the argument that the territory of indigenous peoples can only be demarcated if there is evidence of the requesting community’s existence as of the promulgation date of the Federal Constitution, i.e., October 5, 1988.

Ministers Edson Fachin, Alexandre de Moraes, Cristiano Zanin, Roberto Barroso, Dias Toffoli, Luiz Fux, Cármen Lúcia, Gilmar Mendes and Rosa Weber voted to invalidate the proposal. In contrast, ministers Nunes Marques and André Mendonça voted to allow the proposal.

Among the ministers who opposed the notion of temporal limits were de Moraes, Toffoli, Fux, Mendes and Weber, who aligned with the rapporteur Fachin, voting against the time-based thesis. Ministers Mendonça and Marques voted to introduce a cutoff point to determine the demarcation of indigenous territories.

Marina Silva, the Minister of Environment and Climate Change, declared that the Supreme Court’s annulment of the temporal framework thesis is an “act of justice.” In an interview with journalists, the minister acknowledged that the court’s decision regarding timeframes represents a significant step in the process of restoring justice and compensating for the damage to Brazil’s indigenous communities. She emphasized that everyone, not just indigenous peoples, should celebrate it.

She also mentioned that the recent ruling in favor of indigenous peoples by the country’s highest judicial authority represents a victory for environmental conservation, as indigenous communities play a crucial role in protecting forests, biodiversity, water resources, and cultural diversity, with 80% of the world’s forested areas under their control.

Earlier this week, in contrast to the court’s decision, the Senate voted to expedite the consideration of a legislative proposal that establishes temporal limits in Brazilian legislation regulating land demarcation. 

This proposal has already been approved in the Chamber of Deputies. The bill’s text also stipulates that, in addition to being present on the required territory as of 1988, residents must prove that they are indeed indigenous.

The bill is currently under consideration by the Senate Committee on Constitution and Justice and must be approved by the committee before it is sent to the Chamber of Deputies. The vote is scheduled for September 27, 2023. If the proposal reaches the plenary session, it must be supported by 41 out of 81 senators. Despite the Supreme Court declaring part of the bill regarding temporal limits unconstitutional, this decision does not impede the approval of the law and its submission to President Luíz Inácio Lula da Silva for final approval.