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.
This was the accepted position on the issue of indigenous prospecting until 2004, when a dramatic conflict involving prospectors and the Cinta-Larga became national news. The event forced the Federal Government to issue a decree on 17th September 2004 (published in the Official Federal Gazette of 20/09/2004), creating an Operational Group under the terms of Article 231, Paragraph 3 of the Constitution. The unit was introduced in order to control and restrict mineral exploration in indigenous territories, especially the lands of the Cinta Larga, located in the states of Rondônia and Mato Grosso, as well as maintaining public order in these localities, until the question is regulated by law.