Brazil’s supreme court orders Congress to regulate mining on indigenous lands

On August 13, 2026, a majority vote at Brazil’s Supreme Court (STF) upheld Writ of Injunction No. 7516 (MI 7516), which court Justice Flávio Dino had granted in February 2026. The injunction recognized the Brazilian Congress’s omission in regulating Article 231, Paragraph 3 of the Federal Constitution, which makes the exploration and mining on indigenous lands subject to legislative authorization and a consultation process with the affected communities, while also guaranteeing those communities a share in the proceeds of mining, as provided by law.

MI 7516 was brought against the Federal Government and the National Congress by Patjamaaj, an organization representing the Cinta Larga People, whose lands lie in the states of Rondônia and Mato Grosso in the Brazilian Amazon. The case involved other Indigenous entities, including the Cinta Larga Indigenous People’s Production and Development Cooperative (Cooperbravo), the Pasapkareej Indigenous Association, the Cinta Larga Eterepuya Indigenous People’s Association, and the Aripuanã Park Indigenous Territory, as well as several amici curiae.

Upon ruling on MI 7516 in February, Justice Rapporteur Flávio Dino recognized (on a preliminary basis) the legislature’s omission in regard to regulating Article 176, Paragraph 1, and Article 231, Paragraph 3 of the Brazilian Constitution, which provide for the possibility of exploration and mining on Indigenous Lands subject to certain conditions. Justice Dino also set a 24-month deadline for Congress to remedy the omission. Though more than 37 years have passed since Brazil’s Constitution was promulgated, no statute has ever been enacted to regulate this issue.

In presenting an opinion at a plenary court session on August 13, 2026, Justice Dino emphasized that both Brazil’s Constitution and Convention No. 169 of the International Labour Organization (ILO) guarantee indigenous peoples permanent possession of their lands and exclusive usufruct of the natural resources within their territories. However, he also stated that this right does not preclude the extraction of mineral resources, provided that the interested party meets the constitutional requirements (congressional authorization, consultation with affected communities, and the participation on the mining proceeds).

Justice Dino also referred to a precedent established in another injunction (MI 7490), in which the STF had previously recognized the Brazilian Congress’s omission on the same subject. That case, however, was connected to hydroelectric dam projects.

Specific provisions for the indigenous lands of the Cinta Larga people

The STF established provisional conditions with specific respect to the indigenous lands of the Cinta Larga people, which will remain in force until the legislature enacts the relevant statute. The conditions are as follows:

• A requirement to conduct free, prior, and informed consultation with the communities, as provided for in ILO Convention No. 169;
• If mining is authorized, the area in which it is conducted may not exceed 1% of the demarcated indigenous territory, thereby ensuring the vast majority of the land is preserved;
• Indigenous peoples have priority in the development of mineral resources within their territory, with incentives for them to organize into indigenous cooperatives with approval from Brazil’s Executive Branch and Congress, as well as technical and financial assistance from the public authorities;
• If indigenous peoples do not exercise their right of priority but authorize the project, they will be entitled to a share in the mining proceeds equivalent to 50% of the total amount of the statutory royalties (Financial Compensation for the Exploitation of Mineral Resources – CFEM payable to the states, the Federal District, the municipalities, and the federal government’s direct administrative bodies);
• The communities’ financial share of the proceeds of mining must be allocated entirely to projects relating to territorial security, sustainable production, environmental restoration, health, education, and sustainability;
• The indigenous communities and relevant ministries must jointly establish the method for disbursing those funds, under the oversight of the Federal Public Prosecutor’s Office; and
• Environmental impact studies and sustainable management plans must be prepared, including measures to restore degraded areas and provide environmental compensation, even while mineral extraction is underway.

The Brazilian government was also ordered to ensure the removal of any illegal mining activity from the area – including through the use of force, if necessary – and to complete the consultation process in the Indigenous Lands of the Cinta Larga People, as previously ordered in the records of an appeal contesting the denial of an extraordinary appeal (Recurso Extraordinário com Agravo No. 1425370).

Impacts of the decision

Indeed, it is noteworthy that the question of mineral exploration and mining on indigenous lands has remained unregulated in Brazil for nearly four decades, despite these activities being expressly permitted by the Constitution. It is precisely this lack of regulation, coupled with difficulties in enforcement, that has resulted in illegal extraction on these lands, as well as the conflicts arising from them. The STF’s decision to order Congress to finally address the issue (which, again, the framers of the Constitution expressly permitted) may finally correct this longstanding legislative omission and put an end to debates – and certain interpretations that incorrectly assert that mining on indigenous lands would be prohibited in all circumstances.

Moreover, by establishing specific conditions for mining on the lands of the Cinta Larga people, the STF has outlined a potential precedent for similar situations. Although these conditions cannot be automatically extended to mining on other indigenous lands, the framework that the court has established already indicates, for example, the basis on which exploration and mining may proceed, percentage limits on the area that such activities may occupy, the implications of consultation with the indigenous peoples concerned, and the method for calculating the indigenous peoples’ share in the proceeds of mining, among other practical aspects.

For more information on this topic, please contact Mattos Filho’s Mining, Environmental Law & Climate Change, and ESG practice areas.