Quilombola communities guaranteed right to their lands by Supreme Court

The presidential decree that regulates the titling of traditional lands was deemed constitutional in an eight-to-three ruling

Quilombolas (former slave communities) have the right to occupy and remain on lands that they claim have symbolic value to them. This was the understanding of the majority of Supreme Court justices who, by eight votes to three, upheld the constitutionality of a presidential decree from 2003 that gave the Executive the authority establish the procedure for identifying, recognizing, demarcating and titling lands occupied by quilombola communities.

The case – Direct Action of Unconstitutionality (ADI) No. 3239 – was filed in 2012 by the right-wing DEM (Democrats) party challenging the presidential decree, claiming that this procedure should be handled by a legislative bill in Congress and not by the Executive.

Another issue addressed in the case was the matter of the marco temporal, a timeframe that requires quilombola communities claiming land title to prove that they were occupying the land in October 1988 – when Brazil’s Constitution was approved – or demonstrate that they had been forced off the land prior to this date. The marco temporal was requested by Justice Dias Toffoli, who when giving his vote said it would be necessary to establish a cut-off date for the 2003 decree. Justice Gilmar Mendes voted in line with Toffoli.

“It is a historic victory in the midst of so many setbacks for traditional peoples of Brazil in recent years. The Supreme Court ruling recognizes the legitimate right of quilombolas to ownership of their lands. It is an important step for the cultural standing of these communities, in the sense that the land they occupy is associated with symbolic issues that make up the identity and the existence of descendants of quilombolas,” said Caio Borges, coordinator of the Development and Socioenvironmental Rights program at Conectas.

However, civil society organizations are still concerned that the marco temporal will be used in other cases that challenge the occupation of land by ancestral communities, such as indigenous peoples. In the case judged yesterday, February 8, the court justices disagreed on this point and there was no victory concerning the marco temporal in this ruling.