Brazil's Supreme Court Concludes Ruling On The Indigenous Time Limit Doctrine

Brazil's Supreme Court (STF) has concluded the joint trial of constitutional lawsuits involving Law No. 14,701/2023, known as the Indigenous Time Limit Requirement Act (marco temporal). A majority of the Court reaffirmed the unconstitutionality of the marco temporal doctrine as a criterion for recognizing the traditional occupation of Indigenous lands and declared the Union's unconstitutional omission in complying with Article 67 of the Transitional Constitutional Provisions Act (ADCT), which requires the demarcation of Indigenous lands to be completed within five years from the promulgation of the Federal Constitution.

Justice Gilmar Mendes, the reporting Justice, was followed, with reservations, among others, by Justices Flávio Dino and Dias Toffoli, who emphasized the need to extend the deadline for compliance with the transitional measures to 180 days, a proposal later incorporated into the majority opinion. These transitional measures, set out in the Reporting Justice's opinion and upheld by the majority, were designed to give effectiveness to the demarcation regime in light of the Union's acknowledged delay in complying with Article 67 of the ADCT. Among them are immediate obligations imposed on the National Indigenous People Foundation (FUNAI), including the electronic disclosure of lists of land claims, ongoing demarcation proceedings, and public access to administrative cases.

Justice Edson Fachin, joined by Justice Cármen Lúcia, partially dissented from the Reporting Justice's opinion to declare unconstitutional additional provisions of Law No. 14,701/2023 beyond those directly related to the marco temporal. In particular, they highlighted the unconstitutionality of the caput of Article 20 of the Law, which provided that “Indigenous usufruct does not prevail over national defense and sovereignty policy interests.” Notwithstanding these limited divergences, only Justice André Mendonça voted in favor of the constitutionality of the marco temporal, grounding his position on the will expressed by Congress and invoking the doctrine of legislative override.

On the merits, the Court's majority declared unconstitutional both the marco temporal criterion for traditional Indigenous occupation and the requirements related to so-called “persistent dispossession” (renitente esbulho), as set forth in Law No. 14,701/2023, for being inconsistent with General Repercussion Theme No. 1,031 and the case law of the Inter-American Court of Human Rights. In particular, references to the date of promulgation of the Federal Constitution as a criterion for recognizing traditionally occupied lands were struck down, notably paragraphs 2, 3, and 4 of Article 4 of the Law.

With respect to the indemnification regime applicable to private parties, the STF aligned its approach with the parameters established under Theme No. 1,031, preserving the right of retention of the property until payment of the undisputed amount. Depending on the circumstances, compensation for the land itself was recognized where resettlement is unfeasible, as well as compensation for useful and necessary improvements. The Court further held that the indemnification regime of Article 231, paragraph 6 of the Constitution applies, in cases where there is traditional Indigenous occupation or persistent dispossession contemporaneous with the promulgation of the Constitution, and no non-Indigenous direct possession exists prior to that date, limiting compensation to useful and necessary improvements. Exceptionally, the Court also admitted the possibility of indemnification due to State error, provided that non-Indigenous direct possession prior to October 5, 1988 is proven and resettlement of the private party is unfeasible.

Regarding the duty of prior, free, and informed consultation with Indigenous communities, the STF declared the sole paragraph of Article 20 of Law No. 14,701/2023 unconstitutional, which authorized the implementation of certain projects of national interest without such consultation. In this context, the Court issued an interpretation in conformity with the Constitution of the caput of Article 20 and Article 22 of the Law, safeguarding the obligation to conduct prior consultation whenever projects or activities affect the use and enjoyment of collective Indigenous possession.

As to demarcation procedures, the judgment ensured the qualified participation of interested parties from the evidentiary phase (identification and delimitation), established parameters for transparency and participation—including at the intergovernmental level—and reaffirmed the jurisdiction of the Federal Courts to hear and decide disputes involving Indigenous territories.

Finally, the Reporting Justice proposed the validation of the outcome of the Special Settlement Commission as a possible interpretative reference for the judgment, determining that the “Draft consolidation of consensus points” be forwarded to the National Congress for any measures it may deem appropriate.

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