Forestry management on indigenous peoples’ lands
Introduction
How may indigenous communities legally explore lumber in their areas?
The explanation is made by Paulo Pankararu (ISA
Law Program-Programa Direito Socioambiental- ISA):
The commercial exploration of lumber on indigenous community lands
is a controversial question which has been receiving different analyses,
either in the conceptions of the indigenous communities themselves,
or by anthropologists, environmentalists, specialists in law, public
institutions and non-governmental organizations. The central aspect
of the controversy is whether the indigenous communities can or cannot
explore or commercialize wood on their lands. This controversy has been
the result of a lack of a clear interpretation of pertaining legislation
and consistent public policies to support the sustainable development
of indigenous communities.
Various sectors assumed a position, which was completely contrary
to the exploration of lumber in the indigenous territories or lands,
alleging, in short, that this activity generates a consequent invasion
of persons foreign to the communities, the degradation of the environment
and a negative cultural impact. This argument for a long time was reinforced
by the understanding that the forest located on the indigenous peoples
lands was subject to rules of permanent preservation and conservation,
and furthermore, to the prohibition of placing a lien, alienating or
selling the lumber on the property, which presumably belonged to the
federal government, according to the civil law principles that the accessory
of the assets accompanies the asset itself. That is to say, as the indigenous
lands pertain in the dominion of the federal government and no lien
can be placed on them and cannot be sold, the forest resources pertaining
to these lands cannot be sold or subject to any form of commercialization.
However, despite the vehement degree the sectors defended the prohibition
of the sale or commercialization of lumber from the indigenous lands,
millions of cubic meters of wood have been extracted illegally from
these lands, enriching only the owners of the lumber companies. This
shows that it is simply not enough to establish regulations, which prohibit
the commercialization of the lumber and resources of these lands to
protect the interests and patrimony of the indigenous communities. The
debate should concentrate on the de facto situation of the communities
and their concerns regarding their resources.
One must formulate and execute public policies that enable the communities
to manage their own resources in such a way that they can maintain the
integrity of their patrimony and develop productive activities successfully,
considering their economic, social and cultural uniqueness and the preservation
of their environmental resources.
Understanding prevailing legislation
Forest Code
Law n° 4.771/65 (Forest Code) in Article 3º, letter "G"
and §2º, submits under the heading of permanent preservation
“the forests and other forms of natural vegetation destined
to maintain the environment necessary for the lives of the inhabitants
of the forest.” Although the objective of this was to protect
the indigenous communities, this norm was created without being fully
effective since it considered that all the forest resources existing
on the indigenous community lands were to be permanently preserved.
This application would imply the total restriction to the use of these
resources by the indigenous communities, meaning that they could neither
use lumber nor forest resources to build a house or a bow or arrow.
Indian Statute - Estatuto do Índio
Article 46 of Law nº. 6001/73 (Indian Statute) modified the Forest
Code by the following clause:
"The cutting down of lumber in the indigenous forests considered
as part of a permanent preservation area, in accordance with letter
G and §2º of the Forest code, is conditioned to the existence
of programs or projects for utilizing the respective lands in agricultural
or cattle raising activities, industry or reforestation.”
The letter "G"and §2º - Article 3º. Of the
Forest Code were modified due to their incompatibility with Article
46 of the Indian Statute. The prohibitive nature of exploring lumber
in the Forest Code became less restrictive in the text of the Indian
Statute.
Provisional Measure
In effect, the Provisional Measure. 1.956-55, of October 19, 2000,
alters Articles 1º., 4º., 14º., 16º, and 44, and
adds clauses to the Law 4.771, 15 September, 1965, which established
the Forest Code, and alters Article 10 of Law nº. 9.393, of 19
December, 1996, which deals with the rural land tax, ITR, and other
measures, The provisional measure stipulates in
"Article 2º:
The following clauses were added to Law 4.771, of September 15,
1965:
´Article 3o-A. the exploration of forest resources on indigenous
lands may only be carried out by the indigenous communities in their
territories. Only they can carry out sustainable management procedures
for these forested regions, to meet their subsistence needs, respecting
the conditions of Articles 2 and 3 of this Code.
In the light of the above, the provisional measure mentioned here,
reaffirms the possibility of exploring lumber on indigenous peoples’
lands, as stipulated in the Indian Statute, thus ending any doubt in
this regard.
The concept of “Multiple Purpose Sustainable Forest Use or Activities"
The concept of Sustainable Forest use, referred to in Article
2 of the Provisional Measure, concerns the economic and social uses
that the activity should achieve as well as the ecological balance of
the forest area. This structure was expressed in Decree nº. 2.788,
of October 19, 1998, which regulates Article 15 of the Forest Code,
referring to the exploration of primitive forests of the Amazon basin,
which adopted the concept of Multiple Purpose Sustainable Forest
Use or Activities. This applies to the forest activities on indigenous
community lands located in the Amazon, since they are primitive, basically
preternatural forests.
Article 1º. of the Decree: "The exploration of primitive,
preternatural forests of the Amazon basin covered by Article 15 of the
Law 4.771, of September 15, 1965, (Forest Code), and the other forms
of natural arboreal vegetation, will be permitted under the form of
Multiple Purpose Sustainable Forest Use or Activities, which must be
in accordance with the principles of conservation of natural resources,
the preservation of the forest structure and its functions, the maintenance
of biological diversity, socio-economic development of the region and
the other technical bases established in this Decree.”
§ 2o of the Article 1º. of the Decree: "One understands
that Multiple Purpose Sustainable Forest Use or Activities signifies
obtaining economic, social and environmental benefits, respecting the
mechanisms of the maintenance and sustainability of the ecosystem in
question, and taking into consideration either accumulatively or alternatively,
the utilization of the multiple species of trees, the multiple products
and sub products not classified as trees, as well as the utilization
of other products and services of the nature of the forest.”
Article 2º. of the Decree stipulates the general principles and
technical bases of Multiple Purpose Sustainable Forest Use or Activities,
as follows:
I – General principles:
- conservation of natural resources;
- preservation of the Forest structure and inter-related functions;
- maintenance of biological diversity;
- socio-economic development of the region;
II – technical bases:
- characterization of the biological and physical environment
- Classifying or listing the existing biological and physical inventory;
- Intensity of exploration or activities which are compatible with
the capacity of the area;
- Promotion of the natural regeneration of the forest;
- adoption of an adequate system of exploring or use of the forest;
- monitoring the development of the remaining forest;
- guarantee of the technical-economic feasibility and the social
benefits;
- guarantee of the mitigating effects of the measures that may have
an environmental impact.
The approval of lumbering activities on indigenous community lands
will occur by means of the presentation of a plan of forest use or activities
that will be analyzed by Ibama and Funai. It is not necessary to present
the Environmental Impact Study (EIA) and the Environmental Impact Report
(Rima).
We stress that the plan for forest use or activities presented by
indigenous communities must respect the areas of permanent preservation,
where it is prohibited to suppress,cut down or endanger, for example
the forest located along the rivers, the water sources, the sides and
the tops of mountains or hills, in accordance with the description of
Art 2º of the Forest Code.
The Civil Code versus The Federal Constitution
Based on these considerations, one must clarify that the argument that
the existing forest resources on indigenous peoples’ lands should
be inalienable—like the indigenous lands themselves—is not
valid. The argument was supported by the civil code principle that specifies
that the accessory of the asset follows the asset itself. This argument
however is no longer valid, since the indigenous community rights cannot
be interpreted only in the light of common law. The juridical institutions,
which protect the rights of the indigenous communities, are oriented
by the differentiated nature of the indigenous communities themselves.
As a result, one must apply a different interpretation to satisfy the
will of the indigenous community legislator, for which reason one should
not take into consideration only the Civil Code regarding the question
of exploration of lumber or lumbering activities on indigenous community
lands.
§ 2º of the Article 231 of The Federal Constitution states
that it is the right of the indigenous peoples’ communities to
possess usufruct rights over the products of the soil, rivers and lakes
existing on their lands. The usufruct rights of the indigenous communities
over their lands differ from those rights regulated by The Civil Code.
It is a usufruct right that is compatible with the constitutional principle
of promoting the necessary means for the ethnic continuity of the indigenous
peoples. In this regard it is of fundamental importance to guarantee
that the indigenous peoples have the necessary means for the development
of their productive activities, principally to continue surviving on
their lands and practicing their cultures.
Furthermore, the Idea that the state has recognized the indigenous communities
rights –original rights—over their lands and at the same time
the state plans to withdraw the right to decide how to live on these
lands seems to deviate from juridical logic. Roberto A. O. Santos, in
his opinion on "A Parceria Pecuária em Terras Indígenas—Cattle
raising partnerships on indigenous community lands", states:
"It should be noted, however that one cannot interpret the
Constitution as if it treated the constituents of this constitution
ironically or disloyally, as in the manner in which the indigenous communities
are given a Trojan horse, granting them the usufruct rights on the one
hand and on the other, prohibiting them from using the products of their
lands.”(in: Os Direitos Indígenas e a Constituição,
NDI/ Sérgio Fabris, 1993).
In terms of lumbering activities, one must observe the concept of Indigenous
Lands contained in § 1º of the Article 231 of The Federal
Constitution:
"They are lands which have been traditionally occupied by the
indigenous communities who have inhabited them on a permanent basis,
the lands used for their productive activities, the lands which are
of fundamental importance for the preservation of the environmental
resources required for their welfare and for their physical and cultural
reproduction, according to their uses, customs and traditions.”
On examining this concept, one must verify that there are four aspects
that must coexist for lands to be classified as indigenous community
lands:
- the lands must have been and must be inhabited on a permanent basis;
- the lands must be used for productive activities;
- the lands must be of fundamental importance for the preservation
of the environmental resources required for the welfare of these communities;
- the lands must be required for their physical and cultural reproduction.
All these four aspects are related to the uses, customs and traditions
of the indigenous communities occupying a specific land area.
Thus, in order for economic activity to occur within indigenous community
lands, one must verify, for example, what part of these lands is used
for productive activities and what part is reserved for environmental
protection.
In order to comply with the stipulations of § 1º of the Article
231 of the Federal Constitution, in the case of lumbering activities
on indigenous community lands, one must set up a type of zoning system
to define the area to be used for such activities, followed by the respective
Forest inventory, which will identify and classify the existing species.
In this manner, the lumbering activities on indigenous community lands
presume a prior reality of a zoning system and an inventory of plants
and trees, and should also include a program of sustainable forest use
so that the utilization of the forest by future generations may be assured,
as well as the participation of the whole indigenous community in the
economic results of this program.
By the way, these mechanisms have already been incorporated in the
section dedicated to the commercial exploration of forests on indigenous
community lands in the bill on the Indian Statute, which is currently
on the docks in Congress.
We repeat and summarize:
The Indian Statute changed the clauses of the Forest Code, which obliged
the forests located on indigenous community lands as classified as permanent
preservation , subsequently permitting the lumbering activities on these
lands.
The Provisional Measure nº 1.956-55 consolidated the possibility
of cutting lumber on indigenous community lands, specifying that the
principles of sustainable forest use must be respected, and the areas
of permanent preservation must also be respected in accordance with
the stipulations of the Forest Code.
Also applicable to the activities on indigenous peoples’ lands
are the stipulations of Decree nº. 2.788/98, which contains general
regulations on the treatment to be given to commercial activities of
primitive forests in the Amazon region, since the vegetation on the
indigenous community lands in that region is mainly primitive, preternatural
forest.
Regarding the extraction of lumber, we have seen that it is possible
to be compatible with the usufruct rights the indigenous communities
possess over the resources on their lands, in a manner that complies
with the stipulations of the Federal Constitution of 1988. To achieve
this, one must establish a zoning system and an inventory of the lands
to be explored commercially in this sense. These are obligatory prerequisites,
in accordance with § 1º of the Article 231 of The Federal
Constitution.
Finally, the benefits that arise from the lumbering activities on indigenous
community lands must be distributed obligatorally among all the indigenous
persons involved. These activities must, furthermore, comply with all
the techniques of sustainable forest use for the maintenance of a well-balanced
ecological environment.
It should be emphasized that the Forest Management Plan of the Xikrin
Community in the State of Para, with the approval of the Ibama and the
Funai is already underway. The experience of the Xikrin can serve as
an example for other indigenous communities to develop their own projects.
The pretension that the Government, not only in exercising its policing
powers to prohibit and repress the lumbering activities on indigenous
community lands, would protect the Forest resources of the indigenous
communities has shown to be clearly unrealistic. The protection of the
forest resources on indigenous community lands should be resolved with
the preparation and the execution of public policies and programs that
offer technical and financial resources so that the communities themselves
may undertake the management of their own resources and decide by themselves
how to utilize these resources. This does not eliminate the obligation
of the government to inspect and repress the extraction of lumber carried
out illegally. However, in reality, the state should perform the role
of permitting the indigenous communities to utilize their own resources,
a right that has been assured to them by The Federal Constitution. (Paulo
Pankararu - October/ 2000).
