IACHR Press Office
Washington, D.C. – The Inter-American Commission on Human Rights (IACHR) stresses its concern about the application of the "Temporal Landmark thesis" in Brazil and warns that it could seriously affect the right to collective property of indigenous and tribal peoples in the country. The Commission notes the inter-American standards in force concerning ongoing legal processes.
In its most recent on-site visit to Brazil, the IACHR was informed of the development and application of this legal thesis by the Brazilian Federal Supreme Court (STF, by its Portuguese acronym). In complaints concerning the right to collective property, this thesis means that indigenous peoples only have the right to claim territories they held when Brazil's federal constitution was passed in 1988.
In its recent report , the IACHR stressed that Brazil's federal courts have applied the Temporal Landmark thesis in several decisions, and that it has led to cancellations in ongoing demarcation processes. In particular, the Commission noted the cases of the Limão Verde and Buritim lands belonging to the Terena people and the Guyraroká land of the Guaraní Kaiowá people, all of them in the Brazilian state of Mato Grosso do Sul. The Commission further noted that, in 2018, the STF applied the Temporal Landmark thesis to the Guyraroká indigenous territory, declaring null and void the demarcation processes that had been launched with an identification and boundary-setting report on November 25, 2004. In the latter case, the IACHR was informed during a visit in 2019 that the community had been banned from entering most of its territory and held less than 5% of its identified land, as well as facing an imminent risk of eviction.
The IACHR notes that applying the Temporal Landmark thesis contravenes international and inter-American human rights standards, particularly the American Convention on Human Rights and the American Declaration on the Rights of Indigenous Peoples. One key issue is that the thesis fails to take into consideration countless cases where indigenous peoples were displaced from their territory by force, and often using extreme violence, which means they were not holding their land in 1988 for that reason only.
The IACHR reminds the State of its duty to protect the ties that bind indigenous peoples and traditional or tribal Afro-descendant communities, like the Quilombolas, with their land and territory, as well as with the associated natural resources and immaterial elements. As the Inter-American Court has noted, it is precisely due to this intrinsic connection that indigenous peoples and tribal communities have with their territory that protecting their right to collective property, use, and enjoyment of that territory is essential to ensure the survival of these peoples and communities. The Inter-American Court has stated that indigenous and tribal peoples who fully or partially lose possession of their territory retain their property rights with no time limit, for as long as their essential ties to their ancestral land persist.
The Inter-American Commission therefore calls on the State of Brazil, and particularly on its Federal Supreme Court, to take any measures necessary to review or change the provisos held in court orders and directives that are incompatible with international standards and obligations concerning the human rights of indigenous and tribal peoples, like this Temporal Landmark thesis. The IACHR further stresses the need to effectively enforce, in a timely manner, the right to consultation and free, prior, and informed consent of indigenous peoples.
A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.