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.”
Internal needs and commercialization
As part of the concept of their indigenous communities’ exclusive usufruct rights, one must, however, establish a distinction between the use of natural resources to meet the internal needs of an indigenous community, according to their uses, customs and traditions, and the products that exceed these needs for commercialization, and sale, even for the purpose of the subsistence of these communities. Regarding this distinction, Carlos Frederico Marés de Souza Filho (in "O Renascer dos Povos para o Direito") makes the following comments:
The indigenous communities' usufruct rights and activities, according to their uses, customs and traditions, imply the possibility, without restrictions, of using the products, assets and resources of their lands. In the light of the above, the indigenous peoples may farm, set up villages, extract wood and food for the use of the community without any restriction because any such restrictions imposed administratively or by law imply unconstitutionality.”
On the other hand, the indigenous people produce products in excess of their needs, which they sell or commercialize for the purchase of goods and services, which they do not have internally, that is on their lands. The extraction of these products in excess of their needs should be oriented in accordance with national legal standards of environmental protection taking into consideration the general norms applicable in these situations. In this light, hunting may only be permitted for their internal consumption. If they plan to sell the meat from their hunting activities, they should have a structure to raise the animals of the hunt and this structure should be registered with and authorized by the appropriate authorities; they may only sell lumber or minerals extracted in accordance with the regulations previously established for these purposes, but they may plant products and set up villages in areas considered permanent preservation."
In other words, the traditional activities of indigenous communities, for their own subsistence or internal consumption, are not subject to any restriction nor are they conditioned by any authorization of any governmental entity. But the activities of commercial exploration of natural resources depend on complying with and fulfilling the requirements of specific legal norms, including applicable environmental norms.
The exclusive usufruct rights which the indigenous communities possess over the natural resources of their lands are not obstacles that impede these same indigenous communities from associating with, setting up partnerships with, or being advised or counseled by third parties in the elaboration, preparation and development of economic projects on their lands, as long as these indigenous communities do not transfer title or ownership of these projects or programs or the results of these programs, and definitively do not transfer or place a lien on the use or fruits of their natural resources.
Grubstake mining by third parties
The Federal constitution and common legislation are absolutely clear regarding the prohibition of grubstake mining by third parties on indigenous peoples’ lands. None of these clauses of the Federal Constitution , which seek to legitimate organized grubstake mining, are applicable to indigenous peoples’ lands, by a specific clause in the constitution.
The indigenous peoples' lands were expressly excluded from the norms of the constitution that seek to legitimate cooperatives of grubstake miners. Article 231, §7º, of the Federal Constitution states that ”The stipulations of Article 174, §3º and §4ºdo not apply to indigenous peoples’ lands".
The Constitution makes a clear distinction in the juridical treatment given to mining and grubstake mining on indigenous peoples’ lands. If on the one hand, mining by third parties is subject to specific conditions, on the other hand, grubstake mining on indigenous peoples’ lands by third parties is absolutely prohibited.
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.
The exploration of lumber in the rainforests
In according with the aforementioned items, the federal constitution in Article231, §2º, assures the indigenous communities the permanent ownership of their lands and the exclusive usufruct rights of the riches from the soil, rivers and lakes on their properties. In this light, the use of these riches –or assets-- is expressly allowed to the Indians, and in accordance with the Civil Code, Article 43, I, they are immovable assets, real estate. “the soil and its surface, accessories and natural adjacencies including trees and the fruits of the trees.” There is no doubt, therefore, that the forest assets on the indigenous peoples' lands are among the natural resources that these people--and only they-- can utilize exclusively, according to the Federal Constitution.
Thus these communities may freely use the forest resources on their lands in traditional activities, aimed at subsistence or internal consumption and may cut trees to build homes, make domestic utensils, furniture, work tools or instruments, fences, canoes, and boats, and use their forest resources for any other objective or purpose to make their physical and cultural survival possible. In the development of their traditional activities, the indigenous peoples' communities are not subject to any legal limitations since the Constitution assures them the recognition of their “social organization, customs, languages, beliefs and traditions” and “original “rights on the lands that they traditionally occupy (Article 231, head of article). As a result, there are no general limitations established by the Forest Code on their traditional activities. Thus, they can plant, set up their planting areas and villages even in the areas of permanent preservation established by the Forest Code.
There are several juridical conditions for the exploration of forest resources on indigenous peoples’ lands for their sale and commercialization. These lumber activities on a commercial basis must be subjected to environmental legislation that is applicable in the case in question. Thus, they will be subject to all the restrictions imposed by the Forest Code, by Law 7.754/89, by legislation that governs the exploration of forest and lumber resources in the form of sustainable forest management services which prohibits the cutting down and the sale of certain species of trees.
It should be emphasized, in conclusion, that the exploration of forests conducted by third parties on indigenous peoples’ lands, violates flagrantly the right of the exclusive usufruct privileges of the community, which is assured by the constitution for the indigenous communities. This illegal conduct can cause suits and legal measures in an administrative sphere, through of fines, the seizing of lumber and other administrative sanctions, imposed by the Brazilian Environmental Institute-Ibama, as well as a civil suit (payment of indemnities to the indigenous communities
(Juliana Santilli-April, 2001).