Brazil must protect Indigenous Peoples’ lands, territories and resources, says Special Rapporteur

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GENEVA (11 July 2024) – A human rights expert today called on the Brazilian Supreme Court and Senate to secure the rights of Indigenous Peoples to lands, territories and natural resources and suspend applicability of a constitutionally challenged law that risks depriving or evicting them from traditional lands. The UN Special Rapporteur on the rights of Indigenous Peoples, José Francisco Calí Tzay, issued the following statement:

“While I commend the Supreme Court of Brazil for its ruling rejecting the ‘Marco Temporal’ doctrine, I am particularly concerned by the short time that elapsed between the ruling concluded in September 2023, and the Congress’ adoption of Law 14.701/2023 on December 2023 that implements this doctrine. It remained unclear what could justify a re-discussion of the legal understanding already determined by the Supreme Court, given this short period of time. I am also concerned about new legislative initiatives at the Senate that aim at consolidating the ‘Marco Temporal’ doctrine in the Constitution.

The Marco Temporal (‘Temporal Framework’) establishes that the demarcation of indigenous territories is conditioned on the occupation of the lands claimed at the time Brazil’s constitution was adopted on 5 October 1988. On several occasions, my mandate has criticised the implementation of the Marco Temporal doctrine and its acceptance by the highest court of Brazil would have resulted in a violation of international human rights standards that recognise Indigenous Peoples rights to their lands based on traditional use and possession without temporal limitation.

Law 14.701/2023 regulating the Temporal Framework doctrine is challenged before the Supreme Court of Brazil through five legal processes seeking a declaration of unconstitutionality. On 22 April 2024, the Supreme Court suspended these legal processes and suggested instead a process of mediation and conciliation of Indigenous Peoples’ and agribusinesses’ interests. I am concerned that this suspension is aimed at legal processes that discuss the constitutionality of Law 14.701 but it does not prevent the questioned law from being applied to all the ongoing demarcation processes, which can lead to irreparable harm.

The rights of Indigenous Peoples are upheld and guaranteed by international legal standards, including the UN Declaration on the Rights of Indigenous Peoples and the ILO Convention No. 169, and they are not alienable and cannot be negotiated. Indigenous Peoples rights must be recognised, applied and respected at both federal and state levels – whether through demarcation processes and protection of indigenous lands and territories, or through the implementation of national policies to ensure the right to life, health and security of the Indigenous Peoples of Brazil.

I remind the Brazilian State that lands and territories traditionally owned or occupied by Indigenous Peoples are the defining elements of their identity, and culture and their relationship with ancestors and future generations. Opening the path for extractive policies solely for business interests will legitimise violence against Indigenous Peoples and violate their rights to traditional lands, territories and natural resources.

In the context of climate change, the lands traditionally owned or occupied by Indigenous Peoples are vital for the protection of biodiversity contributing to climate balance due to the harmonious and spiritual relationship that they maintain with nature. Allowing mining activities, gold exploitation and cattle breeding would also formalise a complete environmental setback, compromising the fulfilment of the goals assumed by Brazil under international treaties aimed at reversing climate change as a matter of urgency.

I call on the Supreme Court of Brazil to suspend the application of Law 14.701 until a ruling on its constitutionality has been adopted. This suspension could prevent an imminent risk to the Indigenous Peoples of Brazil of being deprived or evicted of their traditional lands under Law 14.701, currently in force. I also call on the Senate to respect international human rights standards that recognise Indigenous Peoples rights to their lands and territories without temporal limitation.”