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In September 2023, the Brazilian National Congress approved a bill of law to regulate Article 231 of the Federal Constitution, providing for the recognition, demarcation, use and management of Indigenous Lands in Brazil. The text, which established the institution of a temporal milestone thesis to prove the traditional occupation of lands by indigenous communities in the country, was partially vetoed by the President Luis Inácio Lula da Silva.

In December 2023, however, Congress overturned part of the presidential vetoes, culminating in the publication of Federal Law No. 14,701/2023.

In practice, this means that the absence of an indigenous community in the area subject to demarcation on the date of promulgation of the Federal Constitution (5 October 1988) would de-characterize the traditional occupation and the right of indigenous peoples over the land, except in the case of duly proven repeated encroachment.

In addition to instituting the temporal milestone thesis, Federal Law No. 14,701/2023 also brought other relevant points to the demarcation processes of indigenous lands:

(i) Before the demarcation procedure is concluded and improvements made in good faith are compensated, there will be no limitation on the use and enjoyment of non-indigenous people who exercise possession over the area, and their stay is guaranteed until the demarcation is concluded.

(ii) It is forbidden to expand indigenous lands that have already been demarcated and, as a result, demarcations that do not comply with the requirements established by law are considered null.

(iii) The provision on the non-overlapping of the usufruct of indigenous people with the interests of national defense and sovereignty policy and the exemption from hearing the communities or the National Foundation for Indigenous Peoples (FUNAI in Portuguese) in the case of the expansion of highways, the exploitation of electricity and the safeguarding of strategic wealth should be maintained.

It is worth mentioning that in September 2023, in the judgment of Extraordinary Appeal RE No. 1.017.365/SC, the Brazilian Federal Supreme Court (STF) formed a majority against the temporal milestone thesis, and the judgment was used as support for the presidential vetoes.

The issue is likely to return to STF's agenda as several institutions and organizations, including the Ministry of Indigenous Peoples, have stated that will file lawsuits against the new law. At the time of this publication, three lawsuits had already been filed to discuss the constitutionality of parts of the approved text, especially in relation to the temporal milestone thesis.

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