BRIEFING NOTES: Brazil

Spokesperson for the UN High Commissioner for Human Rights: Marta Hurtado

Location: Geneva

Date: 26 September 2023

Subject: Brazil

A recent Brazilian Supreme Court ruling in favour of a case brought by Indigenous Peoples to reject time restrictions on claiming rights to their ancestral land is very encouraging.

The landmark decision - reached by nine of the 11 justices of the Supreme Court (Supremo Tribunal Federal (STF)) - was against what is known as the “Marco Temporal” argument. Under that legal theory, Indigenous Peoples who were not living on their ancestral land in 1988, when Brazil’s current constitution was adopted, would have been blocked from applying for demarcation of their land.

Limiting demarcation in such a way would have had extremely serious consequences, including preventing these communities from returning to lands they had been driven off and from enjoying the associated human rights. It would also have perpetuated and aggravated historic injustices suffered by Brazil´s Indigenous Peoples.

We note that the Supreme Court is due to further deliberate the issue of compensation for those who had acquired indigenous land in good faith. We urge a speedy resolution of this issue, but it is also important that effective access of Indigenous Peoples to their lands is not impeded.

We remain concerned that a draft bill is currently being discussed in Congress, which seeks to establish through legislation the same temporal restriction which has now been rejected by the Supreme Court. The draft bill also includes further obstacles to demarcation processes.

The UN Human Rights Office stresses that, while demarcation of ancestral lands is essential, it is not of itself sufficient to comprehensively protect Indigenous Peoples’ rights.

There needs to be, in particular, an active, systemic policy to protect Indigenous Peoples from violence, including violence carried out by those who illegally invade their lands. The clear need for such a policy is underscored by recent examples of violence inflicted by illegal miners on the Yanomami Indigenous Peoples in the state of Roraima, in a territory that was demarcated as indigenous land more than three decades ago.

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