Strategic mining in indigenous territories

At this very moment, while the humanitarian crisis of the Yanomami people is being discussed, there are approximately 4 mining procedures affecting 216 indigenous lands and 542 hydroelectric projects impacting 208 of their territories currently underway before state bureaucratic bodies, according to data from ISA (Instituto Socioambiental). The Constitution of the Republic, in its article 231, § 6, mandates prior regulation of the matter by complementary law, including the definition of cases of significant public interest to the Union. It is worth remembering that indigenous lands, as stated in article 20, XI of the Constitution, constitute real estate property of the Union, with the indigenous people having the full right to exercise their traditional possession.

In addition to the enactment of a supplementary law, Article 231 of the Constitution, in its § 3, requires the enactment of an ordinary law to regulate how the communities affected by these activities should be consulted beforehand, as well as their participation in the results. Finally, once these laws have been enacted, the Constitution also requires specific and prior authorization from the National Congress to enable mining in their territories.

The issue is not new. The right to permanent possession of traditional lands has been guaranteed in the Brazilian legal system since the 17th century, through royal decrees, charters, and provisions issued by Portuguese monarchs. Consistent with its historical antecedents, the 1988 Constitution merely made explicit the right to traditional possession, a primary and original legal norm and, in this sense, pre-existing the rule of law itself. Therefore, the 1987 National Constituent Assembly recognized not only the possession of the territories traditionally occupied by indigenous peoples, but also the exclusive usufruct of the riches of the soil, rivers, and lakes existing therein. 

It is important to emphasize that the Constitution recognizes indigenous land ownership without confusing it with or subordinating it to the rules of civil possession under Private Law: indigenous land ownership is collective and stems from tradition. From this perspective, the Constitution linked the concept of indigenous land to the notion of collective identity, so that tradition observed anthropological and not chronological vectors, that is, the uses, customs, and traditions of each people and not the simple proof of continuous dominion.

Because they are assets of the Union, the central government has exclusive legislative power over deposits, mines, other mineral resources, and metallurgy (Article 22, item XII). Article 23 establishes federal competence to register, monitor, and oversee the granting of rights for research and exploration of water and mineral resources in indigenous territories (item XI). The National Mining Agency, successor to the DNPM, created by Law No. 13.575 of December 26, 2017, aims to implement the national policy for mining economic activities (Article 2, item I). It is responsible for establishing the technical, legal, financial, and economic requirements to be met by those interested in obtaining mining titles (item VI) and promoting competition among economic agents (item XXIV). This activity includes monitoring and following market practices in the Brazilian mining sector and cooperating with competition defense agencies.

This competence does not extend to mining activities on traditional territories. Had the 1988 Constituent Assembly intended to equate the productive activities developed by indigenous peoples in their territories with mining activities in general, it would not have focused on their cultural peculiarities, that is, their uses, customs, and traditions, when regulating the matter. On the contrary, the Constituent Assembly specifically reserved Chapter V for the regulation of indigenous issues, inserting it into Title VIII, which deals with the Social Order. It chose to recognize in their activities something distinct and incompatible with economic activities in general. This distinction extends to the management of their territories, which, within the body of the Constitution, does not share any identity with the mining policy of Articles 174 et seq. of Chapter III of the Economic Order.

The Supreme Federal Court, when considering the Declaratory Appeals in the Raposa Serra do Sol Case (Pet 3.388), had already made the distinction between mining, as an economic activity, and panning, the latter representing the form of extraction carried out by indigenous people:

The appealed judgment did not exhaustively discuss the legal and regulatory regime applicable to artisanal mining and panning. Nor would it be appropriate to do so. Limiting itself to the interpretation of the constitutional system, the Court only defined that the usufruct of indigenous peoples does not grant them the right to exploit mineral resources (federal public assets) without authorization from the Union, under the terms of specific law (CF/88, arts. 176, § 1, and 231, § 3). In any case, mining, as an economic activity, cannot be confused with those traditional forms of extraction, practiced immemorially, in which collection constitutes a cultural expression or an element of the way of life of certain indigenous communities. In the first case, the requirements foreseen in arts. 176, § 1, and 231, § 3, of the Constitution cannot be disregarded. 

Therefore, there are three phases that would precede the exceptional authorization of mining activity on indigenous lands, according to the Constitution: the enactment of a supplementary law defining the relevant interest of the Union; the enactment of an ordinary law for the prior consultation of the communities and the participation of indigenous people in the outcome of the mining; and finally, the specific authorization, in each case, from the National Congress. It does not require great hermeneutical effort to see that the absence of the supplementary law required by § 6 of Article 231 of the Constitution would prejudice the ordinary regulation of the procedures listed in § 3 and, for the same reason, the authorization of mining on indigenous lands by the National Congress. There is a hierarchy of legal norms that must be respected according to the Constitution, the laws of the country, and the Science of Law itself.

Nevertheless, even if such a supplementary law already existed, it would not be of any use to the claim of regulating mining economic activity in indigenous territories. It is true that the relevant interest of the Union is a diffuse and multifaceted concept, encompassing a broad exegetical spectrum which, nevertheless, finds its interpretative limits within the Constitution itself. And, as the Supreme Federal Court has already stated, indigenous productive activities are not to be confused with mineral economic activities in general. Similarly, the relevant interest of the Union in extracting minerals from indigenous lands, if established, would not be confused with private mining, which is regulated in the Title on Economic Order of the Constitution.

All this is said in an effort to demonstrate that, under the terms of § 6 of Article 231, even if a supplementary law were enacted to allow the exceptional exploitation of minerals on indigenous lands by the State itself, in strategic matters, the claim to regulate mining economic activity is, in any case, an affront to the Constitution, constituting a legal impossibility. There is no doubt that mining in Brazil is lawful and it is the responsibility of the Executive Branch of the Union to regulate this activity. However, private mining, regulated by the Constituent Assembly in the Economic Order, does not extend to strategic mining in indigenous territories, according to the relevant interest of the Public Power, to be regulated by Supplementary Law. Finally, these two concepts should not be confused with indigenous productive activities, including panning, according to the precedent of the Supreme Federal Court.

The debate surrounding the humanitarian crisis afflicting the Yanomami, in which there is strong evidence of genocide resulting from the indigenous policy adopted by the Brazilian State in the last four years, which tolerates illegal mining, has as its backdrop the exploitation of the natural resources of their territories which, nevertheless, according to the Constitution, are in principle inalienable. This debate, as we have seen, stems from the fallacy of equating mining activities that are absolutely distinct within the Constitution: private mining in general, the exceptional strategic mining, whose premise is the relevant interest of the Public Power, and the indigenous productive activities themselves, stemming from their traditions.

Having said all that, one question arises and refuses to be silenced: why aren't the procedures that have been underway for years in the recesses of federal bureaucracy, with the aim of allowing private mining in indigenous territories, simply shelved? The State should promote legal certainty, not the dissemination of ambiguities. To be seen.

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