Brazil: UN expert concerned about legal doctrine threatening Indigenous Peoples’ rights

GENEVA (13 June 2023) – A UN expert today expressed grave concern about the likely negative impact of the “Temporal Framework” doctrine that may be applied by the country's Supreme Federal Court in its ruling in the case of the Xokleng Indigenous Peoples and the State of Santa Catarina. The case has been before the Court since 2021, following an appeal by Brazil's National Indigenous Peoples Foundation (FUNAI). The UN Special Rapporteur on the rights of Indigenous Peoples, José Francisco Calí Tzay, issued the following statement:

“The ‘Temporal Framework’ limits the recognition of ancestral land of Indigenous Peoples only to lands they occupied on the day of promulgation of the constitution, the 5^th of October of 1988. The doctrine of the “Temporal Framework” has reportedly been used to nullify administrative demarcation processes of indigenous lands, as in the case of the Guayaroka Community of the Guarani Kaiowa Indigenous Peoples. It has been challenged on numerous occasions by international bodies, Indigenous Peoples and human rights defenders as disregarding Indigenous Peoples’ right to lands from which they were violently expelled, particularly between 1945 and 1988 – a period of great political turbulence and widespread human rights violations in Brazil, including the dictatorship.

The trial could determine the course of more than 300 pending indigenous land demarcation cases in the country. I call on the Supreme Federal Court to not apply the mentioned doctrine in the case and decide in line with existing international Indigenous Peoples’ Rights standards.

I am very concerned by the adoption on 30 May by the Brazilian Chamber of Deputies of Bill 490/07 that, if approved by the Senate, would legally apply the “Temporal Framework” doctrine.

If the ‘Marco Temporal’ thesis is approved, all indigenous lands, regardless of their status and region, will be evaluated according to the thesis, putting all 1393 Indigenous Lands under direct threat. It is particularly worrying that Bill 490/07 explicitly indicates that its regulation would be applicable to all these pending cases, exacerbating the situation by further prolonging or potentially obstructing the demarcation process, and exposing Indigenous Peoples to conflicts, mining-related contamination, escalating violence and threats of their social and cultural rights.

The adoption of ‘Marco Temporal’ is contrary to international standards. I hope that the Supreme Federal Court's decision will be in line with applicable international human rights standards and that it will provide the greatest possible protection for the Indigenous Peoples of Brazil.

The ruling needs to ensure historical reparations for Indigenous Peoples and to avoid perpetuating further injustice. I call upon the Brazilian Senate to reject the pending bill.

I urge the Government of Brazil to take all measures to protect Indigenous Peoples, their cultures and traditions, in accordance with the Brazilian Federal Constitution and international human rights obligations.”

ENDS