Mining in Indigenous Territory
With the recent intention of President Bolsonaro, to send a bill to regulate the extractive activity of ores on indigenous lands, we noticed a resurgence of the subject, but the fact is that this current issue since the Federal Constitution (CF ) of 88, is an extremely polemic subject, and which receives opinions, critical of the most varied sources
We recall, however, that the rights of indigenous peoples are protected in the Federal Constitution in Article 231, §3 of the Federal Constitution (CF) that, despite allowing mining in indigenous territory, it conditions the activity to prior regulations, which must count on the contribution of the affected communities, as well as in Convention 169/89 of the International Labour Organization (ILO) on indigenous peoples, promulgated by Decree 5,051/04 which provides for, for example, in its art 7, that interested indigenous peoples should have the right to choose their own priorities, with regard to the development process, to the extent that it affects their lives, beliefs, institutions and spiritual well-being, as well as the lands they occupy or use in some way, and to control, as far as possible, their own economic, social and cultural development.
The work of regulating mining activity in indigenous territory is being done through a bill prepared by an interministerial working group composed of bodies such as the Ministry of Mines and Energy (MME), Ministry of the Environment (MMA) and National Indian Foundation (Funai).
But what about mining activity? Can the Indigenous mine? Does the Federal Constitution alow mining on indigenous land by non-indigenous people? These are questions that we intend to make considerations, and offer our understanding and contributions.
The Mining Code, Decree-Law No. 227/67, in article 70, defines mining as: “the individual work of those who use rudimentary instruments, manual appliances or simple and portable machines in the extraction of precious stones, semi-precious and metallic or non-metallic minerals, valuable, in luvion or alluvial deposits, in the alveans waterways or on reserved margins, as well as in secondary or stoned deposits (sticky), slopes and hills highs; deposits these generically called mining”.
According to item II of Article 2 of Law 11,685, mining substances are: “gold, diamond, cassiterite, columbite, tantalite, wolframite, in alluvial, eluvional and coluvial forms, scheelita, other gems, rutile, quartz, beryl, muscovite, scanumnium, lepidolite, feldspar, mica and others, in types of occurrence that come to be indicated at the discretion of the DNPM”.
Despite being constantly taxed illegal, mining is legally authorized after the granting of the corresponding title by the National Mining Agency, the so-called PLG – Lavra Garimpeira Permission, which is granted to individuals, Cooperatives of Prospectors or individual firms.
The mining permit is granted by the Director-General of the ANM, for a period of up to five years, and its renewal for the same period, at the discretion of the Agency, is possible. The allowed area may not exceed 50 (fifty) hectares, except when granted to the prospector cooperative.
Despite properly regulated activity, mining by third parties, other than the indigenous themselves, is not allowed, under any circumstances, in indigenous territory, as expressed in Article 231, §7 of the Federal Constitution and in Article 23, a) of 7.805/89 Law.
This prohibition aims to protect the indigenous’s own right to enjoy and exploit, in a rudimentary and superficial way, the ores present in the Indigenous Lands, exclusively, right established in Articles 231, §2 of the Federation Constitution and 24 of 6.001/73 Law -Indian Statute.
Despite the legal prohibition expressed, it is public knowledge that mining activity is common within indigenous lands, and is often supported by the indigenous themselves. As this activity is illegal and clandestine, it is done without supervision and without control, which causes indisputable damage to the environment and the communities involved.
The biggest problem of mining activity in gold extraction, for example, is the use of mercury to enable amalgam with gold, in order to recover it in the ore washing gutters. Both metal mercury lost during the amalgamation process and mercury vaporized during the burning of amalgam, for gold separation, are highly harmful to life
According to the Ministry of Health, mercury produces destructive effects on the kidneys, liver and central nervous system, causing the reduction of peripheral vision, loss of motor coordination, speech and hearing difficulties, sensory disorders, and muscle weakness, which may cause irreversible sequelae and even death. When it goes beyond the placental barrier, it can generate fetal malformations and congenital diseases.
In 2016, a study by the Oswaldo Cruz Foundation (Fiocruz) and the Socio-environmental Institute (ISA) revealed that in some Yanomami villages, the rate of people contaminated by mercury reaches 92%
In addition to direct damage to health, illegal mining, as practiced in those regions, is usually associated with work analogous to slavery, prostitution, increased violence, child labor, among others.
The latest operations of the Federal Police in the fight of mining in indigenous lands show that prospectors, in addition to illegal, act far beyond rudimentary/manual extraction, having been seized or destroyed: ferries, helicopters, suction equipment, loaders, motorcycle bombs, among other heavy machinery.
As if all the above were not enough, illegal mining still causes damage to the treasury, since much of the effective extraction of ore is done without the collection of financial compensation by the corresponding Mineral Exploration/CFEM.
Despite so much negative data, representatives of the Federal Government have given statements towards the regularization of mining within indigenous lands, through a bill that should be presented soon to the Federal Senate.
However, could this prohibition of mining activity for non-indigenous peoples be part of mining regulations in indigenous areas that are being processed in the Federal Senate? The answer is NO.
This is because the express prohibition of mining activity in indigenous lands is constitutional provision, being certain that it could only be modified through the Proposed Constitutional Amendment – the so-called PEC.
PECs can be presented by the President of the Republic by one third of federal deputies or senators or by more than half of the legislative assemblies, provided that each of them is manifested by the relative majority of its components. The PEC is then discussed and voted in two shifts, in each House of Congress, and will be approved if it obtains, in the House and Senate, three-fifths of the votes of deputies (308) and senators (49).
Thus, we understand that the statement of the Secretary of Geology, Mining and Mineral Transformation of the Ministry of Mines and Energy, Alexandre Vidigal, to the Jornal Estado de S. Paulo, in a report of August 2, 2019, in the sense that the Federal Government is elaborating a model of use for mining in indigenous lands, it should be understood as being the intention of the Government to regulate mining by indigenous peoples, unless it intends to regulate activity by third parties through constitutional amendment.
We hope that, within this discussion, we can take the opportunity to regulate mining activity in indigenous lands that, occupies only in the legal Amazon, almost 1/5 of this territory. We also remind you that, based on Juridicopinion Proge No. 469/15, all applications for Permission of Mining Mining and Research Authorization regarding areas located in indigenous territories (3,880 applications covering 26 million hectares), required after 05.10.1988, should be rejected immediately. We must not forget, yet, of canceling the 122 research titles, mineral licensing and mining mine granted improperly by the former DNPM, in indigenous territory.
We conclude that the lack of opportunities and/or poverty of a particular group of people cannot be used as a justification for authorizing the continuity of predatory mining activity in indigenous lands or even outside them, since they do not bring any benefit to society, let alone indigenous communities.
This Article of: Luis Maurício Azevedo (OAB 80412 RJ) and Samantha M. de C. Bittencourt (OAB 147921 RJ), respectively partner and senior lawyer of FFA LEGAL, office specialized in legal, accounting and administrative assistance to mining companies, and targeted at their customers and partners.
 § 7º Does not apply to indigenous lands the provisions of the article. 174, § 3º e § 4º.
 Art. 23. The permission to mining that this Law deals with: a) does not apply to indigenous lands;
 § 2º The lands traditionally occupied by the Indians are intended for their permanent possession, and they are responsible for the exclusive enjoyment of the riches of the soil, rivers and lakes in them
 Art. 24. The usufruct assured to Indians or forestry comprises the right to possession, use and perception of natural riches and all the usefulness existing in occupied lands, as well as the product of the economic exploitation of such natural riches and utilities.
 Source: Senate Agency