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 framework established through case law based on the Supreme Federal Court of Brazil's (STF) ruling in the Raposa Serra do Sol case in 2009. In this decision, the Supreme Court ruled that Article 231 of the Constitution, which guarantees the usufruct of lands traditionally occupied by Indigenous peoples in Brazil, should be interpreted as applying only to lands that were in their possession on 5 October 1988, the date the Constitution was promulgated.

History

The name "Copacabana thesis" originates from a remark made by Minister Gilmar Mendes during a 2014 trial that reaffirmed the time frame. He stated: "Certainly, Copacabana had Indigenous people at some point; Avenida Atlântica was undoubtedly inhabited by Indigenous people. Adopting the thesis presented in this opinion, we could, without a doubt, reclaim these apartments in Copacabana, as Indigenous ownership would certainly be established at some point in time."

Subsequently, in a motion for clarification, the STF clarified that the conditions established in the Raposa Serra do Sol ruling applied only to that specific case. However, during Michel Temer's administration, based on the opinion of the Attorney General's Office (AGU), the precedent set by the Raposa Serra do Sol case was interpreted as binding for all processes involving the demarcation of Indigenous lands.

In 2019, the issue resurfaced with the ruling on Extraordinary Appeal No. 1.017.365, a case concerning the recognition of an area claimed by the Xokleng Indigenous people within the Sassafras Biological Reserve in Santa Catarina.

Decisions and progress

In the first vote of the trial, Judge Rapporteur Edson Fachin opposed the establishment of a precedent. He argued that the decision regarding Raposa Serra do Sol, rather than resolving the issue, had halted demarcations and escalated conflicts. He also stated that treating Raposa Serra do Sol as a precedent for all Indigenous matters would disadvantage other Indigenous ethnic groups.

The second vote came from Minister Nunes Marques, who supported the thesis, stating: "A theory that argues that land limits are subject to a permanent process of recovery of possession due to ancestral expropriation opens the door to conflicts of all kinds without offering any prospect of pacification."

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

Reception

The STF acknowledged the "general repercussions" of the case, indicating that its decision would establish a precedent for the entire Brazilian judiciary. Following the ruling by Justice Rapporteur Edson Fachin, all proceedings related to the demarcation of Indigenous lands were suspended until the end of the COVID-19 pandemic or the final decision on the extraordinary appeal.

The Attorney General's Office (AGU) defended the thesis, with Attorney General Bruno Bianco, arguing that it established "beacons and safeguards for the promotion of Indigenous rights and for ensuring the regularity of the demarcation of their lands." However, the Public Prosecutor's Office (MPF) opposed the landmark, creating a divergence between the two bodies.

The Attorney General of the Republic, Augusto Aras, stated that "for reasons of legal security, the identification and delimitation of lands traditionally occupied by Indigenous peoples must be done on a case-by-case basis, applying the constitutional norm in force at the time to each specific situation."

Former President Jair Bolsonaro also voiced support for the framework, warning that if the STF were to modify it, it would be "a severe blow to our agribusiness, with almost catastrophic repercussions domestically and abroad."

The Observatório do Clima, a Brazilian environmental regulatory body, referred to the 2023 legislation upholding the thesis as the "Indigenous genocide law." The law would allow increased industrial activities on Indigenous lands, potentially leading to greater deforestation. Despite numerous amendments and vetoes proposed by Brazilian President Luiz Inácio Lula da Silva, the National Congress of Brazil overrode them.