Mining on indigenous community lands
Regulations of mining activities on indigenous community lands have
become a controversial issue in some instances. Writing on this topic
is the attorney-at-law Sérgio Leitão:
The debate on the regulation of mineral activities on indigenous peoples'
lands has been going on for many years in the Brazilian Congress. The
first bill discussing this matter resulted in the initiative of the
late Senator Severo Gomes, as early as 1989, and was approved by the
Senate in 1990 and subsequently sent to the Chamber of Deputies, where,
however it was placed in the dead file, that is to say, the time limit
of the bill expired—owing to an internal ruling of Congress, since
it had not been approved definitively by both branches of the federal
legislature.
In 1991, The Federal Deputies Aloízio Mercadante, Fábio
Feldmann
and others filed the Bill nº 2.057/91, prepared by the nucleus
of Indigenous Community Rights - Núcleo de Direitos Indígenas
(NDI), which proposed the creation of the Statute of Indigenous Societies
and the revision of the infra-constitutional legislation on the rights
of indigenous communities, containing a specific chapter on mining activities
on indigenous community lands. Subsequently two other projects with
the same subject matter were presented, the first, filed by the executive
branch of the government, and the second, the result of efforts by the
Missionary Indigenous Community Council - Conselho Indigenista Missionário
(Cimi) with some members of Congress. The three projects wound up being
sewn together in a substitute bill (Bill nº 2.057/91 -Substitute
Bill of the rapporteur) proposed by Deputy Luciano Pizzatto, which was
approved by the special Commission of the Chamber of Deputies that analyzed
the Bill on June 29,1994. The Bill since then is being cooked on a back
burner due to the obstruction which the executive branch of the government
has been making.
In 1995, Senator Romero Jucá presented in the Senate Bill nº
121/95, focused specifically on the regulation of the exploration and
related mining activities on indigenous community lands. The Bill was
approved by the Senate in February, 1996, and sent to the Chamber of
Deputies in the same year under Bill nº 1.610/96.
Despite the many years the bill has been in Congress, neither the Substitute
Bill of Deputy Pizzatto nor the Bill of Senator Jucá managed
to propose satisfactory solutions to some points considered crucial
in the question of mining on indigenous community lands. The bills failed
to incorporate many of the suggestions which had been offered by the
indigenous communities themselves, as well as by civil organizations
and NGOs which support indigenous peoples’ rights. In both bills
there are clauses which contradict one another and need to be reworked
and reworded to become more harmonious. The purpose of this article
is to present these aspects in a summary and direct manner, listing
the current impasses and obstacles.
Number of mining operations on the same indigenous
community lands
As the data raised by the Instituto Socioambiental indicate, there
are various indigenous community lands where more than half of the area
has mining claims. In some cases these claims total 90% of the area
(See Mining Interests).
This situation indicates the need to set up limits for the authorization
of research, mining asseys and the granting of claim rights within the
indigenous community lands, thus avoiding the situation where a specific
indigenous community has its territory fully taken by mining companies,
in detriment to the objectives expressed in the Federal Constitution
when it delineated the concept of indigenous community lands.
Area for habitation, area for developing productive activities, area
for physical and cultural reproduction, area for environmental preservation.
Up to the present time, none of the bills that are currently in Congress,
proposing the regulations of this question, has presented any proposal
to limit the scope of the operations of the mining companies within
the indigenous community lands. This results in absurd situations, such
as those already verified by the Instituto Socioambiental.
One must verify whether the solution will be contained in the text
of the Bill, or whether Congress will be given the obligation to establish
these limits on a case by case basis, regarding the exercise of the
function that the Constitution established when authorizing mining research
and mining activities on indigenous community lands.
Obviously, in an ideal situation, the Bill would establish a maximum
area to be reserved for mining operations, or at least, would establish
parameters for this limitation, which should orient the National Congress
when it authorizes these mining operations. This would avoid the danger
of Congress, when analyzing on a case-by-case basis, creating an imbalance
between the guarantee of indigenous communities' constitutional rights
and the possibility of exploring the mining resources existing on these
lands.
Revenues from mining activities
The Constitution states that the indigenous communities must participate
in the benefits from the mining operations on their lands. This participation
is understood in economic terms. However, there are doubts regarding
the best way of establishing the coefficient or percentage of this participation,
as well as the bases on which this percentage should apply.
The Bill proposed by Senator Romero Jucá and the Substitute
Bill of Deputy Luciano Pizzatto establish a minimum percentage of 2%,
over the” gross revenues resulting from the mining operation commercialization/sales,
obtained after the final stage of the mining process adopted and prior
to its industrial transformation stage.” (Article 84 of Substitute
Bill and Article 6º of the Jucá Bill). Both the bills allow
a variation of this percentage, either more or less, with a 25% variation,
related to the phases of the mining claim that is granted.
The first question raised relates to the conditions that the indigenous
community should verify as to whether the percentage being paid corresponds
exactly to the gross revenues mentioned above. Will the indigenous community
have access to the accounting books of the mining company? Will the
community receive information from tax authorities regarding the taxes
paid by the mining group to be able, based on this information, to monitor
its revenues and control the correct remuneration of its percentage
of participation?
The fact is that none of the two bills deals with this question. Therefore,
one must question whether it would not be appropriate to include this
matter in the text of the bill with the help of specialists in the area
of taxation and mining, or whether the question should be left to discussion
when the bill is regulated (after being passed by Congress).
Another question relates to the amount of the minimum percentage established.
Criticism was raised over the coefficient of 2%, which was considered
insufficient by some parties. Should this question be left to the indigenous
community to negotiate the percentage with the interested mining company?
Or should the minimum and maximum percentage be stipulated in the bill?
Allocation and use of the revenues
The Substitute Bill of Deputy Pizzatto stipulates that it is the function
of the indigenous community to manage the revenues that it receives
as a percentage of the results of the mining activities on its lands.
In this regard, the bill of Senator Jucá stipulates that these
resources be deposited in a savings account in the name of the Community,
and only that community can use the revenues freely, and the use of
the main amount would be conditioned to the authorization of Funai and
the Prosecutors Office of the Federal Government.
The participation in the results of the mining operations is guaranteed
to the indigenous communities as a form of compensation for the mining
operations on their lands and the socio-environmental impacts which
would inevitably occur from these mining operations. It would not be
just, no matter what the justification used, to condition the use of
the revenues which seek to minimize the consequences of an activity
in the national interests—mining operations—since the minerals
underground are the property of the federal government.
Not even the argument that the indigenous communities are subject to
the guardianship of the government is applicable to assist the Indians
in expressing their own will, and cannot serve as a basis for an instrument
that would eliminate in advance the indigenous communities’ will
or decision-making capacities.
One must also consider that the institution of guardianship is completely
obsolete and, today, there is no indication that the government has
greater discernment regarding the use and management of these resources
than the indigenous communities themselves.
If the above arguments were not enough, the Bill of Senator Jucá
creates the obligation of allocating 2.5% of the revenues due to each
community to a special fund for serving the more deprived indigenous
communities. Although, to persons who are more naïve, this may
appear to be a praiseworthy proposal, actually the clause winds up attributing
to the indigenous communities, which is already supporting the burden
of mining on their lands, the obligation of financing the welfare of
the other communities, which, however, is the duty of the government.
One of the prerequisites in the Substitute Bill of the Sepcial commission
is the obligation to present the Environmental Impact Study and Environmental
Report before mining operations can be authorized. The Jucá bill
does not stipulate these prerequisites. Although mention is made in
the constitutional texts of the obligatory reports (EIA-Rima) to license
any activity which may potentially cause an damage to the environment,
in theory, one can extend this application to the prerequisite of mining
activities on indigenous community lands, the stipulation of this clause
in the text of the law, would ward off any margin of discretionary or
arbitrary decisions in the administration in these hypothetical cases.
As is well known, mining activities causes significant socio-environmental
impacts. As a result, a specific clause in the law is an indispensable
precaution to, above all, provide Congress, the executive branch of
the government, the indigenous communities involved and society as a
whole, a diagnosis o the potential risks and the prior definition of
the cost/ benefit relationship of the mining operation. That is to say,
one mist minimize the impact, by adopting those mitigating measures
already included in environmental law, without which the mining operation
would not be authorized. In the event the mining operation can be authorized,
the EIA-Rima environmental studies and reports should list from the
beginning the mitigating measures in each specific case, as well as
the measures regarding the recuperation of the environmental damages
resulting from the mining, as stipulated in the Federal Constitution
itself (Article 225, §2º).
The Constitution stipulates that Congress can only authorize the mining
on indigenous community lands after discussing the matter with the indigenous
communities involved. The Substitute Bill of Deputy Pizzatto as well
as the Jucá Bill mentioned this constitutional clause, without,
however, specifying how it should occur. There is no mention for example,
that the hearings with the indigenous communities should occur on their
own lands. Nor is there any definition as to the form in which the hearing
is to take place. Above all it is not clear as to what procedures will
be followed to provide the indigenous community with an understanding
as to what it is supposed to express an opinion upon.
The law should be clear in this sense, stipulating that the consultation
of the communities should occur on their lands, and should ensure that
they receive prior information regarding the context of the project
they are expected to express their opinion on. It should also establish,
if necessary the obligation that the mining company should assume the
payment of independent consultant which may offer the indigenous community
technical information regarding the operation.
The Bill of Senator Jucá as well as the Substitute Bill of Deputy
Pizzatto, ensures the rights of priority for those mining claims on
indigenous community lands, that had been filed with the National Department
of Mineral Research, DNPM, prior to October 5, 1988, when the new Federal
Constitution came into effect.
Aside from overwhelming the indigenous community lands with a flood
of mining research and mining claims, which must be analyzed, without
giving the indigenous communities sufficient time to analyze the consequences
of the activities proposed on their lands.Thus, both bills wind up not
obliging the indigenous communities to comply with these requirements,
that is, neither bill obliges the communities to conduct prior analyses
of the verification of the conditions to conduct mining operations on
indigenous community lands, a prerequisite obligatory for all the other
parties interested in mining activities.
In other words, the bills state that the National Department of Mineral
Research, DNPM, together with Funai, should state in each case the conditions
regarding mining on indigenous community land. However, on assuring
the prior rights of earlier claims, the Bill eliminates the obligation
of this prior analysis in these cases (claims prior to 1988) thus, making
this prerequisite inapplicable. It is well known that there are too
many mining claims filed prior to 1988. Thus, the exception becomes
the rule.
It should be emphasized that the justification used by mining companies
to maintain these clauses in both bills is very weak and unfounded.
Since these claims were filed prior to the new Federal Constitution
of 1988, when there were no special rules for mining on indigenous community
lands, the same rules should be valid, including priority rights referred
to in the Mining Code.
But there is no acquired right that prevails over the Federal Constitution,
and the Constitution sets up a new procedure that all the interested
parties must comply with the clauses of the constitution.
There are many questions which must be dealt with to regulate mining
operations on indigenous community lands. It is true, however, that
the indigenous communities and their support organizations have discussed
these questions and have tried to propose solutions to the existing
problems. It is certain that the bills before Congress up to the present,
result, mainly, in initiatives and proposals of the indigenous communities
themselves and organized civil society.
The bill of Deputy Pizzatto failed to incorporate many of these suggestions,
which by the way, are responsible for the omissions and the controversial
items referred to above. One must then ask, “Who would be interested
in the omissions or non-regulation of these crucial items, since the
indigenous communities and their support organization have made serious
joint efforts to regulate these items in laws? (Sérgio Leitão
- July/ 1999).
In April, 2000, the executive branch presented to Congress the alternative
proposal to the Substitute Bill of Deputy Luciano Pizzatto related to
the Bill of the Indian Statute. In the section regarding mining operations,
this proposal makes some changes.
For example, regarding research and assaying and mining claims presented
to the DNPM prior to October 5, 1988, the alterative proposal of the
executive branch no longer ensures the priority rights to titleholders
of these claims. If the government text is approved, these titleholders
will only have preference in the case of a hung vote or decision in
the process for choosing the entity responsible for conducting mining
operations on indigenous community lands. That is to say, if two interested
parties compete to explore mining operations and present the same or
equal proposals, the party that had filed a claim prior to 1988 would
be declared the winner.
