Milestone thesis
The milestone thesis, 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 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.
Background
''Raposa Serra do Sol'' case
In 2005, during Luiz Inácio Lula da Silva's administration, the Ministry of Justice demarcated an area of in Roraima as an indigenous territory, namely Raposa Serra do Sol. At the time, the territory was home to 194 indigenous communities, comprising around 19 thousand people; anyone on the territory who was not part of the indigenous communities was given one year to vacate the territory.Rice farmers of Roraima contested this demarcation, arguing that their expulsion would seriously affect the state's economy, and that they had deeds to the lands they occupied. Dozens of motions were submitted to the Supreme Federal Court requesting the demarcation be overturned or be turned discontinuous, so the farmers could remain. These were represented by the landmark Petition 3388/RR of the Supreme Court.
In March 2009, with a single dissenting vote by minister Marco Aurélio Mello, the Supreme Court ruled the demarcation legal and constitutional. This is the birth of the temporal marker, or milestone, thesis; in his decision, rapporteur Ayres Britto argued the following:
The name "Copacabana thesis" originates from a remark made by Minister Gilmar Mendes during a 2014 case that reaffirmed the temporal marker. 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."
Application to other demarcation cases
Following the original decision, in a motion for clarification, the STF specified that the conditions established in the Raposa Serra do Sol ruling applied only to that specific case.In July 2017, however, during Michel Temer's administration, the Attorney General of [the Union |Attorney General's Office] determined the precedent set by the Raposa Serra do Sol case was 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 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 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, 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.