IACHR Welcomes the Fact That Brazil's Temporal Landmark Judicial Doctrine on the Demarcation of Indigenous Territories Has Been Declared Unconstitutional

October 6, 2023

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Washington, D.C. – The Inter-American Commission on Human Rights (IACHR) welcomes the decision made by Brazil's Federal Supreme Court (STF) to declare unconstitutional the Temporal Landmark judicial doctrine concerning the demarcation of indigenous territories.

On September 21, in extraordinary decision RE1017365, the STF said that the date when Brazil's Federal Constitution was signed into law may not be taken as the time reference to establish the ancestral possession of land by indigenous peoples. This decision applies to the 226 cases concerning the demarcation of indigenous territories that are currently being addressed in various courts in the country.

The IACHR has stressed in the past the special connection that indigenous and tribal peoples have with their territories and natural resources. This connection supports and reproduces various practices and traditions that make up the world views of these groups, so preserving their territories is an essential condition for the existence of these communities and their cultures.

In this context, the Commission calls on the State to strengthen judicial guarantees concerning the collective ownership of ancestral territories and natural resources by indigenous peoples. States in the Americas must enable effective mechanisms for delimitation, demarcation, titling, and restructuring of indigenous land and territories, including the adoption of protection measures regarding the actions of third parties.

The IACHR further stresses that all legislation and actions affecting the territories of indigenous and tribal peoples must have the consent of these peoples, expressed in free and informed prior consultation procedures in keeping with the applicable inter-American standards.

In line with the recommendations held in the IACHR's 2021 report Situation of human rights in Brazil, this Supreme Court decision entails an opportunity to encourage dialogue between indigenous peoples and the State. The Inter-American Commission stresses its willingness to continue to provide technical assistance to Brazil for the development of these processes.

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.

No. 240/23

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