The exclusive usufruct rights of the indigenous communities over the natural resources of their lands, ensured by the federal Constitution, should be understood as a benefit to the indigenous communities, a special protection and should not be construed as a restriction to their productive activities. Writing on this topic is Juliana Santilli (Public prosecutor of the Federal District and collaborator of the ISA Law Program -Programa Direito Socioambiental/ ISA):
The sole exceptions to the usufruct rights by the indigenous communities are stipulated in the Constitution itself: the use of the water and mining resources by third parties, as long as the opinions of indigenous communities are heard and as long as they are assured of a participation in the results of these activities (Article 231, § 3º).
This right is aimed at assuring the indigenous communities means for their subsistence, so that they may reproduce, physically and culturally. This right is not aimed at restricting their initiatives and projects for economic self-support.
Concept of exclusive usufruct rights
The juridical concept of exclusive usufruct rights is of fundamental importance in understanding legislation that regulates the exploration of natural resources of the indigenous community lands. According to the Civil Code, Article 713, these usufruct rights are classified as the ”real right to explore the utilities, uses and fruits of something,” and these usufruct rights also encompass the accessories and the growths or additions to, or products grown on or resulting from the area (Article 716). In accordance with Article 718 of the Civil Code, “the person who possesses the rights to the usufruct of the assets of a thing also possesses the right to the ownership, use, administration and perception of the fruits or results of this thing.”
The Statute of the Indian in force (Law 6.001/73) establishes the following definition of the indigenous communities’ usufruct rights:
"Article 24 – The usufruct rights assured to the indigenous communities or natives of the forest (silvícolas) include the right to the ownership, utilization and perception of the natural resources and all the uses and utilities existing on the lands they occupy, as well as the product of the economic exploration of such resources and utilities.
§ 1º - Include in these usufruct rights, which extend to the accessories of or the additions to or objects grown on the land, the use of the water sources and the waters as well as the waterways located on the lands that they occupy.
§ 2º -The indigenous peoples are guaranteed the exclusive right to hunt and fish in the area that they occupy, and the measures and steps taken to police, monitor and apply these rights should be undertaken in a persuasive ("suasiva") manner, that is, by implementing and enforcing the law."
These exclusive usufruct rights, assured to the indigenous peoples by the Federal Constitution, signify that these communities may take from the natural resources of their lands, all the products, fruits, uses and possible sources of revenues or products, as long as they do not alter the substance or do not endanger the environmental sustainability of the location.
The indigenous communities cannot grant or transfer to third parties their usufruct rights. This does not mean, however, that they are obliged to use their assets directly and immediately or that they cannot associate with or be advised by third parties in projects which seek to explore their natural resources. Any understanding to the contrary would transform their usufruct in a true Trojan horse (i.e. a gift horse with bad teeth) for these communities, and would seriously hamper them in developing their own economic projects, as emphasized by Roberto Santos in an article on "Parceria Pecuária em Terras Indígenas (Cattle raising partnerships on indigenous lands)".
The indigenous communities are definitely prohibited from getting involved in projects that imply the loss of their lands, or which endanger and inhibit the sustainability of their resources, since these lands and resources must be preserved for future generations, as they are collective rights.
Indigenous lands, while considered the basis of the habitat of a people, and the sustainability of the natural resources that are extracted from these lands, assure the physical and cultural reproduction of the indigenous communities. And it was exactly for this purpose of recognizing the dependency of the indigenous communities on their natural habitat that the Constitution imposed upon the government the obligation to defend and preserve, not only the lands they inhabit, but also the uses of the resources for their productive activities, which are inextricably linked to the preservation of the environmental resources necessary for their welfare and the needs for their physical and cultural reproduction, in accordance with their uses, customs and traditions (Article 231, heading).
The aforementioned exclusive usufruct rights do not impede the indigenous communities from developing their own productive activities, even for commercial reasons. Of fundamental importance in this case is the preservation of the existing environmental resources on the indigenous community lands in order to ensure the survival of future generations, as well as the maintenance of ownership and control by the indigenous communities over the activities and projects developed on their lands, since these projects should promote their economic and environmental self- support rather than their dependence upon third parties. One should also emphasize that, in any case, the Indian Statute itself, in Article 8, sole paragraph, stipulates that business activities practiced among indigenous communities and third parties that are prejudicial to the communities, or whose negative effects upon these same indigenous communities, due to cultural differences, or their lack of understanding of the complexities of the effects, shall be null and void.
As mentioned previously, Brazil's Federal Constitution prohibits the transfer of title of indigenous lands to third parties and Article 24 , cited above, should be understood in the light of Article 18 of the Statute:
"Article 18 – Indigenous Community lands cannot be the subject of leasing or rent or any act or juridical operation that restricts the full exercise of direct ownership by the community of indigenous peoples or by the natives of the Forest (silvícolas).
1º - In these areas, any person foreign to the tribal groups or indigenous communities is prohibited to hunt, fish or explore the fruits or products of the land, or any farming, cattle raising or extractive activities.”