Economic activities on indigenous peoples’ lands
Introduction
The
exclusive usufruct rights of the indigenous communities over the natural
resources of their lands, ensured by the federal Constitution, should
be understood as a benefit to the indigenous communities, a special
protection and should not be construed as a restriction to their productive
activities. Writing on this topic is Juliana Santilli (Public prosecutor
of the Federal District and collaborator of the ISA
Law Program -Programa Direito Socioambiental/ ISA):
The sole exceptions to the usufruct rights by the indigenous communities
are stipulated in the Constitution itself: the use of the water and
mining resources by third parties, as long as the opinions of indigenous
communities are heard and as long as they are assured of a participation
in the results of these activities (Article 231, § 3º).
This right is aimed at assuring the indigenous communities means for
their subsistence, so that they may reproduce, physically and culturally.
This right is not aimed at restricting their initiatives and projects
for economic self-support.
The juridical concept of exclusive usufruct rights is of fundamental
importance in understanding legislation that regulates the exploration
of natural resources of the indigenous community lands. According to
the Civil Code, Article 713, these usufruct rights are classified as
the ”real right to explore the utilities, uses and fruits of something,”
and these usufruct rights also encompass the accessories and the growths
or additions to, or products grown on or resulting from the area (Article
716). In accordance with Article 718 of the Civil Code, “the person
who possesses the rights to the usufruct of the assets of a thing also
possesses the right to the ownership, use, administration and perception
of the fruits or results of this thing.”
The Statute of the Indian in force (Law 6.001/73) establishes the following
definition of the indigenous communities’ usufruct rights:
"Article 24 – The usufruct rights assured to the indigenous communities
or natives of the forest (silvícolas) include the right to the ownership,
utilization and perception of the natural resources and all the uses
and utilities existing on the lands they occupy, as well as the product
of the economic exploration of such resources and utilities.
§ 1º - Include in these usufruct rights, which extend to the accessories
of or the additions to or objects grown on the land, the use of the
water sources and the waters as well as the waterways located on the
lands that they occupy.
§ 2º -The indigenous peoples are guaranteed the exclusive
right to hunt and fish in the area that they occupy, and the measures
and steps taken to police, monitor and apply these rights should be
undertaken in a persuasive ("suasiva") manner, that is, by
implementing and enforcing the law."
These exclusive usufruct rights, assured to the indigenous peoples
by the Federal Constitution, signify that these communities may take
from the natural resources of their lands, all the products, fruits,
uses and possible sources of revenues or products, as long as they do
not alter the substance or do not endanger the environmental sustainability
of the location.
The indigenous communities cannot grant or transfer to third parties
their usufruct rights. This does not mean, however, that they are obliged
to use their assets directly and immediately or that they cannot associate
with or be advised by third parties in projects which seek to explore
their natural resources. Any understanding to the contrary would transform
their usufruct in a true Trojan horse (i.e. a gift horse with bad teeth)
for these communities, and would seriously hamper them in developing
their own economic projects, as emphasized by Roberto Santos in an article
on "Parceria Pecuária em Terras Indígenas (Cattle
raising partnerships on indigenous lands)".
The indigenous communities are definitely prohibited from getting involved
in projects that imply the loss of their lands, or which endanger and
inhibit the sustainability of their resources, since these lands and
resources must be preserved for future generations, as they are collective
rights.
Indigenous lands, while considered the basis of the habitat of a people,
and the sustainability of the natural resources that are extracted from
these lands, assure the physical and cultural reproduction of the indigenous
communities. And it was exactly for this purpose of recognizing the
dependency of the indigenous communities on their natural habitat that
the Constitution imposed upon the government the obligation to defend
and preserve, not only the lands they inhabit, but also the uses of
the resources for their productive activities, which are inextricably
linked to the preservation of the environmental resources necessary
for their welfare and the needs for their physical and cultural reproduction,
in accordance with their uses, customs and traditions (Article 231,
heading).
The aforementioned exclusive usufruct rights do not impede the indigenous
communities from developing their own productive activities, even for
commercial reasons. Of fundamental importance in this case is the preservation
of the existing environmental resources on the indigenous community
lands in order to ensure the survival of future generations, as well
as the maintenance of ownership and control by the indigenous communities
over the activities and projects developed on their lands, since these
projects should promote their economic and environmental self- support
rather than their dependence upon third parties. One should also emphasize
that, in any case, the Indian Statute itself, in Article 8, sole paragraph,
stipulates that business activities practiced among indigenous communities
and third parties that are prejudicial to the communities, or whose
negative effects upon these same indigenous communities, due to cultural
differences, or their lack of understanding of the complexities of the
effects, shall be null and void.
As mentioned previously, Brazil's Federal Constitution prohibits the
transfer of title of indigenous lands to third parties and Article 24
, cited above, should be understood in the light of Article 18 of the
Statute:
"Article 18 – Indigenous Community lands cannot be the
subject of leasing or rent or any act or juridical operation that restricts
the full exercise of direct ownership by the community of indigenous
peoples or by the natives of the Forest (silvícolas).
1º - In these areas, any person foreign to the tribal groups
or indigenous communities is prohibited to hunt, fish or explore the
fruits or products of the land, or any farming, cattle raising or extractive
activities.”
Internal needs and commercialization
As part of the concept of their indigenous communities’ exclusive
usufruct rights, one must, however, establish a distinction between
the use of natural resources to meet the internal needs of an indigenous
community, according to their uses, customs and traditions, and the
products that exceed these needs for commercialization, and sale, even
for the purpose of the subsistence of these communities. Regarding this
distinction, Carlos Frederico Marés de Souza Filho (in "O Renascer dos
Povos para o Direito") makes the following comments:
"The indigenous communities' usufruct rights and activities, according
to their uses, customs and traditions, imply the possibility, without
restrictions, of using the products, assets and resources of their lands.
In the light of the above, the indigenous peoples may farm, set up villages,
extract wood and food for the use of the community without any restriction
because any such restrictions imposed administratively or by law imply
unconstitutionality.”
On the other hand, the indigenous people produce products in excess
of their needs, which they sell or commercialize for the purchase of
goods and services, which they do not have internally, that is on their
lands. The extraction of these products in excess of their needs should
be oriented in accordance with national legal standards of environmental
protection taking into consideration the general norms applicable in
these situations. In this light, hunting may only be permitted for their
internal consumption. If they plan to sell the meat from their hunting
activities, they should have a structure to raise the animals of the
hunt and this structure should be registered with and authorized by
the appropriate authorities; they may only sell lumber or minerals extracted
in accordance with the regulations previously established for these
purposes, but they may plant products and set up villages in areas considered
permanent preservation."
In other words, the traditional activities of indigenous communities,
for their own subsistence or internal consumption, are not subject to
any restriction nor are they conditioned by any authorization of any
governmental entity. But the activities of commercial exploration of
natural resources depend on complying with and fulfilling the requirements
of specific legal norms, including applicable environmental norms.
The exclusive usufruct rights which the indigenous communities possess
over the natural resources of their lands are not obstacles that impede
these same indigenous communities from associating with, setting up
partnerships with, or being advised or counseled by third parties in
the elaboration, preparation and development of economic projects on
their lands, as long as these indigenous communities do not transfer
title or ownership of these projects or programs or the results of these
programs, and definitively do not transfer or place a lien on the use
or fruits of their natural resources.
Grubstake mining by the indigenous communities
themselves
The Indian Statute expressly permits grubstake mining
by the indigenous communities themselves:
"Article 44 – As the wealth of the soil on indigenous
community lands can only be explored by the indigenous communities themselves,
they, therefore, possess the exclusive rights to the exercise of grubstake
mining, panning, collecting and gathering the mineral resources of the
aforementioned areas.
The Federal Constitution, promulgated in 1988, maintains the exclusive
usufruct rights of the indigenous communities over the resources of
the soil on their indigenous lands, as previously mentioned. In this
regard, Article 44 of the Indian Statute was consolidated by the related
clauses in the Federal Constitution. There is an obvious distinction,
however, between the constitutional treatment granted to the mining
and grubstake mining operations when compared to the Indian Statute.
The Constitution deals with the two activities in a different manner,
referring to them in different clauses. Mining is regulated by Article
231, §3º, of the Federal Constitution, whereas grubstake mining is mentioned
in the 7th paragraph, which excludes the possibility of grubstake mining
by third parties on indigenous peoples’ lands. In this light, the constitutional
norms, which establish specific conditions for mining on indigenous
peoples lands’, the need for authorization by Congress, the consultation
of the communities involved and their participation in the results of
the mining operations, obviously are not applicable to the grubstake
mining operations by the indigenous communities themselves.
The statute of indigenous societies, currently being discussed by the
National Congress, maintains this same orientation, stipulating that:
"Article 14 – The patrimony of the indigenous community
includes: Patrimony II – the exclusive rights to the usufruct of
their lands of all the natural resources of the soil, the rives and
lakes existing on the indigenous peoples’ lands, including the
accessories or additions to, and the activities of hunting, fishing,
gathering and collecting, grubstake mining, and, panning, gathering
and collecting minerals,(faiscação e cata)"
Law 7.805/89,on regulating the rules permitting grubstake mining, states
expressly in Article 23, that:
" The permission to grubstake mining which this law covers a)
does not apply to indigenous peoples’ lands.”
As a result, the general rules that govern the permission for grubstake
mining are not applicable to this activity on indigenous peoples’
lands. This means that the specific norms regulating the conditions
for the activity of grubstake mining by the indigenous peoples’
themselves should be established and issued by the government. On the
other hand, the indigenous peoples cannot be impeded from exercising
a right (the exclusive usufruct rights to the natural resources and
the grubstake mining, panning , collecting and gathering of the minerals
(faiscação e cata), activities permitted by the Federal
Constitution and by the current Indian Statute) due to the absence of
legal regulations. The laws in force that regulate mining activities
simply do not contain any clause which is related to procedures and
demands that the indigenous communities must follow or adhere to in
order to obtain authorization from the government to perform grubstake
mining activities on their lands.
Until a legal and specific regulation has been implemented for grubstaking
mining in indigenous peoples’ territories and lands, by the indigenous
communities themselves, the experimental projects of grubstaking mining
on these lands should be subject to authorization ad hoc, granted by
the DNPM, Department of Mineral Research, on a case by case basis, and
the environmental agency should give its opinion in the terms of prevailing
legislation, and the indigenous peoples’ agency should also be consulted
on the possible impacts of grubstake mining on that community.
The Federal constitution and common legislation are absolutely
clear regarding the prohibition of grubstake mining by third parties
on indigenous peoples’ lands. None of these clauses of the Federal
Constitution , which seek to legitimate organized grubstake mining,
are applicable to indigenous peoples’ lands, by a specific clause
in the constitution.
The indigenous peoples' lands were expressly excluded from the norms
of the constitution that seek to legitimate cooperatives of grubstake
miners. Article 231, §7º, of the Federal Constitution states
that ”The stipulations of Article 174, §3º and §4ºdo
not apply to indigenous peoples’ lands".
The Constitution makes a clear distinction in the juridical treatment
given to mining and grubstake mining on indigenous peoples’ lands.
If on the one hand, mining by third parties is subject to specific conditions,
on the other hand, grubstake mining on indigenous peoples’ lands
by third parties is absolutely prohibited.
In according with the aforementioned items, the federal constitution
in Article231, §3º, assures the indigenous communities the
permanent ownership of their lands and the exclusive usufruct rights
of the riches from the soil, rivers and lakes on their properties. In
this light, the use of these riches –or assets-- is expressly allowed
to the Indians, and in accordance with the Civil Code, Article 43, I,
they are immovable assets, real estate. “the soil and its surface,
accessories and natural adjacencies including trees and the fruits of
the trees.” There is no doubt, therefore, that the forest assets
on the indigenous peoples' lands are among the natural resources that
these people--and only they-- can utilize exclusively, according to
the Federal Constitution.
Thus these communities may freely use the forest resources on their
lands in traditional activities, aimed at subsistence or internal consumption
and may cut trees to build homes, make domestic utensils, furniture,
work tools or instruments, fences, canoes, and boats, and use their
forest resources for any other objective or purpose to make their physical
and cultural survival possible. In the development of their traditional
activities, the indigenous peoples' communities are not subject to any
legal limitations since the Constitution assures them the recognition
of their “social organization, customs, languages, beliefs and
traditions” and “original “rights on the lands that they
traditionally occupy (Article 231, head of article). As a result, there
are no general limitations established by the Forest Code on their traditional
activities. Thus, they can plant, set up their planting areas and villages
even in the areas of permanent preservation established by the Forest
Code.
There are several juridical conditions for the exploration of forest
resources on indigenous peoples’ lands for their sale and commercialization.
These lumber activities on a commercial basis must be subjected to environmental
legislation that is applicable in the case in question. Thus, they will
be subject to all the restrictions imposed by the Forest Code, by Law
7.754/89, by legislation that governs the exploration of forest and
lumber resources in the form of sustainable forest management services
which prohibits the cutting down and the sale of certain species of
trees.
It should be emphasized, in conclusion, that the exploration of forests
conducted by third parties on indigenous peoples’ lands, violates
flagrantly the right of the exclusive usufruct privileges of the community,
which is assured by the constitution for the indigenous communities.
This illegal conduct can cause suits and legal measures in an administrative
sphere, through of fines, the seizing of lumber and other administrative
sanctions, imposed by the Brazilian Environmental Institute-Ibama, as
well as a civil suit (payment of indemnities to the indigenous communities
(Juliana Santilli-April, 2001).
Read too: Forestry management
on indigenous peoples’ lands
