On September 27, 2023, Brazil’s Supreme Court concluded the trial of Extraordinary Appeal No. 1,017,365, which discussed a deadline for indigenous occupation as a requirement for the demarcation of indigenous land. Based on a strict interpretation of the Brazilian Constitution, the time limit thesis attempted to introduce a deadline to limit indigenous land claims, arguing that only indigenous lands occupied on the date of the promulgation of the 1988 Constitution by the federal government could be demarcated. In considering the appeal, the Supreme Court not only rejected the term requirement, but also established a broad set of criteria covering other relevant aspects of the demarcation of indigenous territories.
First, the Supreme Court has defined new circumstances for compensation bona fide private buyers/owners who are harmed by the subsequent demarcation of indigenous lands. According to the Court’s decision, the compensation criteria already established in the constitutional text should also apply where there is traditional indigenous occupation of the land, or a violation of such occupation, concurrent with the promulgation of the Constitution. In other cases, where there is no occupation or violation by an indigenous community at the date of proclamation, landowners should also be compensated in relation to the bare land value if their resettlement is unfeasible. Furthermore, provided that it is impossible to demarcate and return the land to indigenous communities, the Supreme Court has declared that the federal government may create a proportionately reserved area on behalf of the indigenous community.
The Supreme Court also ruled that the anthropological report is one of the fundamental elements of the demarcation procedure and is essential for demonstrating the traditional character of the indigenous occupation. Under the constitution, only “traditionally occupied” areas can be demarcated on behalf of indigenous communities. In addition, the Supreme Court agreed that the size of demarcated indigenous areas can be adjusted, provided there is evidence of a serious and insurmountable error in the original administrative demarcation procedure, which can be addressed within five years after the demarcation is completed are stated.
The final text of the Supreme Court’s ruling has not yet been published, but just a few days after the Supreme Court’s ruling, Brazil’s Congress passed a bill that ratified the closing date of the 1988 Constitution. However, the validity of the bill still depends on the President’s sanction. The outcome of the Supreme Court ruling and the sanction or veto of the bill could impact hundreds of lawsuits across the country discussing the expropriation of private lands for the demarcation of indigenous lands and the relevant compensation in connection therewith, as well as energy, infrastructure, agricultural and mining projects.