Article originally published on the Mídia Ninja website, on 8/5/2024

The PP entered the Federal Supreme Court (STF) with a Direct Action of Unconstitutionality by Omission (ADO), number 86, asking for a deadline of up to one year for Congress to regulate paragraph 6 of article 231 of the Constitution, which provides for cases of exception to the right of exclusive enjoyment of indigenous peoples over their lands and the natural resources therein, in cases of “relevant public interest of the Union”. In the same action, the party requests that, if the Legislature fails to do so, that the STF itself remedy this omission.

The aforementioned paragraph provides for a complementary law for this regulation. The exception clauses could include the construction of roads and power transmission lines in Indigenous Lands (TIs), in addition to other projects of “Union interest”. 

In turn, paragraph 1 of article 176 of the Constitution also provides for the enactment of a law to regulate mineral research and mining in these areas. The standard “will establish specific conditions when these activities take place in border areas or indigenous lands”. The new legislation must also regulate the conditions already established in paragraph 3 of article 231 for the development of these activities, which are adaptation to the national interest, prior authorization from Congress and the participation of affected communities in the mining results.

In 1990, the Senate approved bills, authored by the then senator Severo Gomes (PMDB-SP), regulating these points relating to indigenous rights. At other times, the Senate itself approved another project on mining in TIs, by senator Romero Jucá (MDB-RR), but the Chamber did not complete its processing. A Statute on Indigenous Peoples was also proposed in a special committee of the Chamber, with a chapter on mining, reported by deputy Luciano Pizzatto, but which was never voted on in plenary.

After 35 years of the promulgation of the Constitution, the issue has not been regulated by Congress. The curious thing is that it is the party of the president of the House, Arthur Lira (PP-AL), that appeals to the STF depending on the situation. He himself admits this contradiction: “Congress, sometimes, when it decides not to legislate, it is legislating. It does not open space for other Powers to do so.”

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Currency trading

Lira did not have the same difficulty in approving Law 14.701/2023 which, in addition to several other setbacks, instituted a “time frame” to restrict the demarcation of ILs, considering only the groups that were in effective possession when the Constitution was promulgated. The Articulation of Indigenous Peoples in Brazil (Apib) appealed against this law to the STF, which had already affirmed the unconstitutionality of the time frame and, now, must confirm this decision, in addition to analyzing its other articles.

However, in an interview in January, at the opening of the legislative year, Lira said that the time frame restricts demarcations, but does not “solve the problem” of already demarcated lands and proposed regulating their “commercial exploitation”: “This issue, in my view , urgently needs regulation, it could be via complementary law (…) what is already provided for there [in the Constitution], [which has not yet been done] due to, sometimes, omission or not wanting to legislate at that moment”.

The actions proposed by Apib and the PP will be reported by minister Gilmar Mendes, who sees signs of unconstitutionality in provisions of the law, but only temporarily suspended legal proceedings dealing with the issue in lower courts of the Judiciary, without reaching the devices in question. In the preliminary injunction, he proposes a “conciliation”, interpreted behind the scenes of the court as a probable new rejection of the time frame, but accompanied by the regulation of the exploitation, by third parties, of the natural resources of the TIs.

In September, the STF had considered the time frame unconstitutional and, with general repercussions, established 13 other theses relating to indigenous territorial rights, including the right to compensation for bare land to potential holders of title deeds, issued by public authorities, incidents in demarcated areas.

divided government

While the current majority of the Legislature is pressing to restrict indigenous territorial rights and the STF is preparing to continue legislating and reconciling them with the interests of third parties, the federal government is astonished, frightened and divided in its role of promoting demarcations. President Lula says he wants to take them forward, but his administration is divided.

The Ministry of Indigenous Peoples (MPI) appeals to other departments, but the Ministry of Justice has not delimited any area so far. The Civil House does not act to resolve any pending issues in advance and presents them to the president as objections, at the time of decision-making, leading to their postponement.

This ambiguity also characterizes the actions of Minister Alexandre Padilha, from the Institutional Relations Secretariat, and government leaders in Congress. The weight given to measures related to economic policy, such as tax reform, is much greater than to the socio-environmental agenda, as in the case of the time frame. Likewise, the protection that political articulation guarantees for some ministers does not extend to everyone.

(Injustice

There are still regions where conflicts involving the retaking of traditional territories occur, such as in the southwest of Mato Grosso do Sul, by the Guarani-Kaiowá, and in the southeast of Bahia, by the Pataxó. Conflicts arising from predatory mining also persist, such as in the Yanomami territories, in Roraima, Kaiapó and Munduruku, in Pará. It is not appropriate to transfer responsibility for these pending issues to indigenous peoples, which derive from the criminal actions of invaders and the continued inaction of governments.

Although the indigenous movement mobilized strongly against measures contrary to their rights during the previous government and appointed some leaders to positions of trust in the current government, indigenous rights should not be subject to political radicalization. By approving an unconstitutional law, the current Congress violated a historic pact that it itself created during the National Constituent Assembly, when the chapter “On Indians” was approved consensually, by all parties, with 497 votes.

It is expected, therefore, that the STF, when deciding on indigenous rights and trying to mediate the political dispute around them, does not place this burden on indigenous peoples, as Congress has done, and does not delay its decision, as happens with the government. It is time for the powers of the Republic to build positive agendas for indigenous territories, which not only represent the rescue of historical rights, but have a decisive role in any national strategy that may be defined to face the threat of climate change.