The current Forest Code is in force since 2012. Thus, for the benefit of the legal certainty, few points have changed after its judgment by the Supreme Court on February 28, 2018 – conditions that in our point of view do not reach a large part of the rural population and/or forestry assets.
The discussions on the Forest Code within the scope of the Federal Supreme Court (STF) arise from the Direct Actions of Unconstitutionality No. 4901, 4902, 4903 and 4937 and the Declaratory Action of Constitutionality No. 42. In these suits, some legal provisions were adjudged unconstitutional; to others, the STF gave interpretation according to the Constitution, as briefly summarized below:
“Amnesty” for violations committed before July 22, 2008
STF has decided that there is no “amnesty” for owners who abided the Environmental Regularization Program (“PRA”), since the possibility of punishment in case of violation of the terms related to the PRA remains. According to the judgment, the Forestry Code aims to stimulate the recovery of environmentally degraded areas, counterpointing the allegation that the Code intended to amnesty violator.
In any case, this provision was interpreted according to the Constitution by STF, in order to eliminate the risk of statute of limitations related to the punishability of environmental crimes committed before July 22, 2008 and the sanctions arising from them during the execution of the PRA assumed by the owner.
Legal Reserve Compensation
All rural property must maintain an area covered by native vegetation as a Legal Reserve. In this sense, it was given interpretation according to the Constitution to allow compensation solely between areas of legal reserve with ecological identity. The Forest Code established that the Environmental Reserve Quota “can only be used to compensate Legal Reserve of rural property situated in the same biome of the area to which the title is linked.”
Surroundings of intermittent warterhole/water sources are considered as permanent preservation areas
Supreme Court gave interpretation in accordance with the Constitution so that intermittent waterholes/water sources shall be considered Permanent Protection Areas (“APP”), whether rural or urban area. In our opinion, this is a relevant aspect, since many owners in their Rural Environmental Registry (“CAR”) have not considered such areas as APP.
Exceptional intervention in APP
Regarding the exceptional intervention in APP, it was declared the unconstitutionality of some terms, in order to reduce the cases of intervention provided for in the Forest Code. It was determined that the intervention by social interest or public utility is conditioned to the examination of technical or locational alternative to the proposed activity. The list of public utility cases has also been reduced, in order to exclude the possibility of works aiming waste management and those linked to the performance of sports competitions in APP.
Different treatment for indigenous lands and traditional peoples and communities
The Forest Code establishes different treatment for small family rural possession or property. This treatment, by the original wording of the Law, was extended “to rural properties and possessions with up to four fiscal modules that carry out agroforestry activities, as well as to demarcated indigenous lands and other titled areas of traditional peoples and communities that make collective use of its territory”. On this extension, STF stated that the terms “demarcated” and “titled” are unconstitutional, since the demarcation and land titling procedure lasts several years.
So far, STF has not made available the written decision of the judgment. In this sense, the information mentioned above can undergo changes, also because it has not yet judged finally.
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