Actions in the STF against mining in an indigenous area have been dragging on for a year

The images of Yanomami children and elderly people in a starving state tarnished the country’s image and provoked strong criticism of the government of former President Jair Bolsonaro (PL), who would not only have failed to provide assistance, but also colluded with illegal activities that jeopardize the survival of the indigenous. For more than a year, however, two actions have been pending before the Federal Supreme Court (STF) that seek to prevent the advance of mining in these territories, which is currently considered one of the main risk factors for the lives of these peoples in the Amazon. To date, these actions have not received an injunction, of an urgent nature, to stop the problem.

The two actions have as rapporteur Minister Kassio Nunes Marques, appointed by Bolsonaro to the STF. They were presented by the Rede and PV parties in December 2021. The objective is to suspend authorizations, granted over the last few years by the National Defense Council (CND) and the National Mining Agency (ANM), for research and extraction of gold in the inside or near indigenous lands in the Amazon, especially in a region known as Cabeça do Cachorro, where more than 20 ethnic groups live.

The CND authorizations were granted by General Augusto Heleno, former head of the Institutional Security Office (GSI), as they are located on the border strip. These are “prior assent acts”, a requirement for the ANM to subsequently analyze other requirements for granting a license for prospecting and eventual removal of gold, by prospecting or industrial mining.

The parties point to violations of constitutional rights in these authorizations for mining: to a balanced environment, to the life and health of indigenous peoples and to the protection of the natural heritage of the Amazon. More concretely, they demonstrate, with studies and data, the damage caused by mercury, used in the separation of gold from ore, which contaminates river water and fish, with harmful effects on the health of those who consume it, including the riverside population. .

In addition, field research indicates that mining favors the occurrence of fires and deforestation, thus also contributing to forest devastation in the Amazon region.

In the case of the CND, the Network points out that authorizations are granted only on the basis of verification of formalities, without considering the situation of the indigenous people and the protection of the forest. In relation to the ANM, the party contests the internal norm that allows the automatic approval of mining activities if the interested parties’ requests are not analyzed within a certain period by the body itself.

“The contested acts are clearly protocolary, and do not take into account unavoidable constitutional commands. As can be seen from the acts of assents, at no time were the inevitable impacts on the indigenous population and the environment that will be caused by mining activities considered. The places where mining was authorized have never received similar authorizations before, they are currently practically untouched areas and home to a large number of indigenous populations of the most diverse ethnic groups, including peoples considered to be in total isolation”, argues the Network’s action.

“Third, the acts allow the opening of a new frontier for mining and all the activities that accompany it (deforestation, fires, agriculture) in completely preserved areas and with a high number and diversity of indigenous population”, continues the caption.

The party also cites an article by the Igarapé Institute which, based on satellite images, shows a 20-fold increase in illegal mining in the region inhabited by Yanomami. “The findings are catastrophic, with the indigenous land being the most coveted by miners.”

The PV action, in turn, seeks to overturn eight acts of prior consent signed by Augusto Heleno over a total area that exceeds 587 thousand hectares in the Amazon, almost four times the size of the city of São Paulo. Two of the beneficiary companies were punished by Ibama for environmental infractions. Since 2019, the general has granted another 80 similar authorizations, for research or mining of minerals.

“If the authorizations are not suspended immediately, the exploration of the ores will continue during the course of this action; this means the imposition of irreparable damage to the environment, such as water and soil pollution and deforestation due to human occupation, in addition to immeasurable damage to the health of communities living in the region (notably indigenous ones), given the mercury contamination that comes from the mining activity”, warned the party in December 2021, justifying the need for an immediate injunction to suspend the authorizations.

Actions against mining are moving at a slow pace; government defends licenses close to yanomamis

Since they were filed, the actions have only received formal dispatches to discuss their own processing in the Court. The first, from the Network, shortly after being distributed by lot to Minister Kassio Nunes Marques, spent more than two months waiting for a decision on whether he was actually the rapporteur . The party wanted the action to be forwarded to Minister Luís Roberto Barroso, who had already led a previous action, from the Articulação dos Povos Indígenas do Brasil (Apib), whose objective is to force the government to protect tribes from contamination by Covid-19.

Only in February 2022, following the opinion of the legal area of ​​the STF, the then president, Luiz Fux, determined that the action should continue with Kassio Marques, since it had a different object. But the process only started moving again in January of this year, when the Network informed the STF that, in December of last year, Augusto Heleno authorized the search for gold in an area of ​​almost 10 thousand hectares – the equivalent of about 60 times the Ibirapuera Park – located less than 8 kilometers from the Yanomami indigenous land, in the municipality of Iracema, in Roraima.

On duty at the STF during the recess, the President of the Court, Rosa Weber, urgently requested information from the GSI and the ANM. In response, the new head of the GSI, General Edson Gonçalves Dias, chosen by President Lula (PT), defended the authority of the body for authorizations in the border strip and maintained that they only verify that the beneficiaries are not foreigners and that the area it is not overlapping with other ongoing extractive activity. He added that the final word on the license rests with the ANM, with the GSI only responsible for the preliminary license at the border, a strip of 150 kilometers into Brazilian territory.

On the other hand, he informed the minister that six authorizations that had been granted by the GSI were canceled after receiving information from the ANM and Funai – according to the general, these authorizations only allowed research, not the mining of gold. The canceled measures covered four of the eight areas identified by the PV in its action. The others remain authorized, as well as the other area, close to the Yanomami indigenous land, indicated in the Network’s action.

Gonçalves Dias defended the maintenance of the authorization for this specific area, close to the Yanomami, saying that it was a place “already anthropized”, that is, already degraded by human action. “The area object of research, and not mining, as mentioned in the petition, is set in a place that has already been anthropized, since it shares its location with the Maranhão Settlement Project and the Japan Settlement Project, both under the management of the National Institute of Colonization and Agrarian Reform (INCRA). Furthermore, and also relevant to mention, this area of ​​research interest is separated from the Yanomami IL by another anthropized area, namely, the São José Settlement Project, in the municipality of Iracema, state of Roraima”, wrote the general.

The ANM, which has the final say on permits, said it does not grant permits for research and gold mining on indigenous lands – although this is possible in nearby locations. The agency also declared that it would never deliberately publish any act that could endanger the life, health, freedom of anyone or that caused damage to the environment”. The opinion was sent by the director general of the agency, Mauro Henrique Moreira Sousa, appointed last year to the position by former president Jair Bolsonaro.

Last year, urged by Kassio Marques to manifest themselves in the action of the PV, the Attorney General’s Office (AGU) and the Attorney General’s Office (PGR) defended the authorizations granted by the GSI. The AGU argued that the areas did not cover indigenous lands, while the PGR said that the agency’s act is prior and that only the ANM gives the final word on the license.

After these demonstrations, Kassio Marques no longer dispatched the processes. In February last year, he decided that the PV action would be analyzed directly in the plenary. To this day, however, he has not asked Rosa Weber for a date for judgment of the claims.

Another action in the STF calls for changes in the control of gold extraction

A third action aimed at preventing the advance of mining on indigenous lands in the Amazon reached the STF in November last year. It was presented by the PSB and the Network and seeks to overthrow another norm that, according to the parties, facilitates the environmental degradation of these regions. This is the device inserted by the National Congress in a provisional measure of 2013 that exempts the Distributors of Bonds and Securities (DTVMs), institutions legally authorized to buy and sell gold in the country, from controlling the origin of the product.

When acquiring the metal, the DTVMs do not need to verify the extraction site, as the “presumption of good faith in the information” provided by the sellers is accepted. The lawsuit says that many institutions have representatives linked to garimpeiros. “Thus, when buying gold from themselves, in the absence of effective external control and monitoring mechanisms, DTVMs can rely on the principle of good faith to make any existing irregularities in the origin of gold in the Amazon invisible to society”, say the parties.

This action has Minister Gilmar Mendes as rapporteur, who has already asked the AGU, PGR, Congress and the Presidency for information to judge it directly in plenary. All bodies defended the current law, but the minister has not yet asked for a date for judgment.