IACHR

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IACHR Takes Case involving Brazil to the Inter-American Court

April 26, 2016

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Washington, D.C - The Inter-American Commission on Human Rights (IACHR) filed an application with the Inter-American Court of Human Rights in case 12.728, Xucuru indigenous people and its members, regarding Brazil.

The case relates to violations against the right to collective property of the Xucuru indigenous people resulting from a delay of more than 16 years, between 1989 and 2005, in the administrative process of recognition, titling, demarcation and delimitation of their territory and ancestral lands and territories; as well as the delay in the total regularization of such territory and lands, in a way that the above mentioned indigenous people could peacefully exercise such right. Additionally, the case is related to the violations against the right to fair trial and judicial protection derived from a breach of the guarantee of reasonable timeframe in the mentioned administrative process, as well as a delay in resolving civil actions initiated by non-indigenous persons in relation to the territory and ancestral land of the Xucuru indigenous people.

In its merit report, the Commission recommended the State of Brazil to adopt as soon as possible the necessary measures, including legislative, administrative or other measures necessary for the effective removal of non-indigenous settlers from the ancestral lands of the Xucuru indigenous people, according to their customary law, values uses and traditions. Consequently, Brazil must ensure that indigenous members can continue to live peacefully their traditional way of life, according to their cultural identity, social structure, economic system, customs, beliefs and traditions. Additionally, the Commission also urged the State to adopt as soon as possible the necessary measures to complete the legal proceedings filed by non-indigenous persons regarding part of the territory of the Xucuru indigenous people. In compliance with this recommendation, the State must ensure that its judicial authorities resolve the respective legal actions in accordance with the standards on the rights of indigenous peoples set forth in this report. Moreover, the IACHR exhorted Brazil to repair on an individual and collective level the consequences of the violation of the rights identified hereto. In particular, consider the damage caused to members of the Xucuru indigenous people by the delays in the recognition, demarcation and delimitation, and the lack of timely and effective removal of non-indigenous settlers from their ancestral territory. Finally, the Commission requested the State to take the necessary measures to prevent future occurrence of similar events, in particular, adopt a simple, fast and effective remedy to protect the right of indigenous people in Brazil to claim their ancestral territories and peacefully exercising their collective property.

The Inter-American Commission submitted the case to the Court’s jurisdiction on March 16, 2016, because it considers that the State of Brazil had not complied with the recommendations contained in the Merits Report. The Commission submitted to the Court’s jurisdiction the actions and omissions of the State that occurred or continued to occur after December 10, 1998, date of the acceptance of the Court’s contentious jurisdiction by the State of Brazil. The actions submitted to the Inter-American Court are: violations of the right to collective property of the indigenous people as a result of the seven years delay under a competency of timely process of recognition of their territory; violation of the right to collective property for the lack of total regularization of their territory and ancestral land from 1998 until the present date; violation of the rights to a fair trial and judicial protection connected to the delay in the administrative process of recognition; the violation of the rights to personal integrity of the members of Xucuru indigenous people – since December 10, 1998 – as a consequence of previous violations that resulted in the impossibility to peaceful exercise the right to collective property of their territory and ancestral land; the violation to the rights to a fair trial and judicial protection – since December 10, 1998 – in the decision of civil actions brought by non-indigenous occupants regarding parts of the ancestral territory.

This case provides an opportunity for the Inter-American Court to build up its jurisprudence on cases of collective property of indigenous peoples regarding their ancestral territories and lands. Specifically, about the characteristics that the recognition, titling, demarcation and delimitation of these lands and territories should have, so it can be considered compatible to the State’s obligations regarding the rights of collective property and judicial protection, with special emphasis on the necessity that such procedures do not get unjustifiable delayed. Additionally, the case will allow the Court further deepen the scope and content derived from the obligation to regulate ancestral lands and territories in order to ensure that the rights of collective property of the indigenous people are peacefully exercised in practice.

A principal, autonomous body of the 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 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.

No. 053/16