GENEVA (23 August 2021) – A UN human rights expert today called on the Brazilian Supreme Court to secure the rights of indigenous peoples to their lands and to reject a legal argument being promoted by some businesses that want to exploit natural resources on traditional indigenous lands.
“Acceptance of this argument would result in significant denial of justice for many indigenous peoples seeking the recognition of their traditional land rights, and under the Constitution indigenous peoples are entitled to the permanent possession of the lands they traditionally occupy,” said Francisco Cali Tzay, UN Special Rapporteur on the rights of indigenous peoples.
“If the Supreme Court accepts the so-called Marco Temporal (“time frame” argument) in its ruling on land demarcation later this month, it could legitimize violence against indigenous peoples and inflame conflicts in the Amazon rainforest and other areas,” he said.
The Supreme Court’s expected ruling on 25 August on the Extraordinary Appeal No. 1.017.365 will guide the federal government and future courts in settling indigenous land issues and addressing indigenous rights.
“The court’s decision will not only determine the future of these issues in Brazil for years to come, it will also signal whether the country intends to live up to its international human rights obligations and whether it will respect indigenous communities who were not allowed to participate in legal proceedings that revoked their land rights,” Tzay said.
He said it is vital that the Supreme Court – and all public institutions and authorities – abide by legal standards, including the UN Declaration on the Rights of Indigenous Peoples and the International Labour Organization Convention No. 169 on Indigenous and Tribal Peoples.
At issue is a legal argument, called the Marco Temporal, which indigenous advocates fear could legalise theft of indigenous lands. Business interests that want to exploit indigenous lands for mining and industrial agriculture argue that indigenous peoples must prove they occupied the lands at the time of Brazil’s constitution was adopted in 1988.
“Ironically, this very Constitution was supposed to have guaranteed their land rights,” Tzay said. Indigenous peoples and human rights activists argue that the Constitution does not set any time limits on indigenous land rights. They also argue that this arbitrary date ignores the fact that indigenous peoples may have been forcibly removed from their lands before then.
“Indigenous peoples’ rights to the land do not stem from a grant from the state, but originate from the very fact that they are the original inhabitants, and lived on these lands long before Europeans came to Brazil,” he said.
“I call on the Brazilian Supreme Court to uphold indigenous peoples’ rights to their traditional lands, territories and natural resources,” said Tzay.
Francisco Cali Tzay (Guatemala) was appointed as the UN Special Rapporteur on the rights of indigenous peoples for a three-year term commencing 1 May 2020. He is Maya Kaqchikel and the founder and member of a different indigenous organizations in Guatemala. He was President of the UN Committee for the Elimination of all forms of Racial Discrimination, a treaty body from which he was elected for four consecutive periods of 4 years each.
The Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council's independent fact- finding and monitoring mechanisms. Special Procedures mandate-holders are independent human rights experts appointed by the Human Rights Council to address either specific country situations or thematic issues in all parts of the world. They are not UN staff and are independent from any government or organization. They serve in their individual capacity and do not receive a salary for their work.