Illegal mining: AGU opposes 3 ministries and supports good faith – 03/21/2023 – Environment

Ministry of Indigenous Peoples, Ministry of Environment and Ministry of Justice, including Federal Police. These three ministries and one of the main crime-fighting bodies in the country take a stand against the presumption of good faith in the trade in gold from mining. The position is recorded in manifestations sent to AGU (Attorney General of the Union).

Even so, the body defends the permanence of the norm in an opinion sent to the STF (Federal Supreme Court). According to the AGU, the law is poorly applied, and its repeal would worsen the regulatory environment.

The presumption of good faith is questioned by two ADIs (direct actions of unconstitutionality). In its opinion, the AGU states that it manifests itself as a lawyer of the law, an attribution provided for in the Constitution.

However, experts heard by the report insist that the body chose this position, as it is not obliged to act as a lawyer of the law, especially when the law in question goes against the Union.

Good faith is provided for in paragraph 4 of article 39 of law 12,844 of 2013 and is considered politically embarrassing for the Lula government. The device was inserted by Deputy Odair Cunha (PT-MG) in a provisional measure on agricultural insurance, and the law was sanctioned by then President Dilma Rousseff.

Technically, the law establishes that the seller is telling the truth when he declares the origin of the gold to the DTVM (Distribuidora de Títulos e Valores Mobiliários). This type of financial institution is authorized to operate with the metal and, as it is the first company to acquire it after extraction, is responsible for its legalization.

In these ten years, specialists from different areas concluded that good faith created a legal loophole for “heating up” gold from mining, especially that extracted from indigenous lands and preservation areas. Researchers Leila Pereira and Rafael Pucci, from Insper, for example, identified an increase in illegal mining after the enactment of the law, adding academic arguments for its repeal.

In a manifestation sent to the AGU, to help it prepare the opinion for the STF, the Ministry of Indigenous Peoples was categorical in stating that good faith is one of the norms that increase the risk to life for indigenous communities.

“Gamimp is the main mechanism of extraction in the Brazilian Amazon, focusing on several ILs [Terras Indígenas] —the case of the Yanomami ILs (RR and AM), Tiverim Igarapé do Rio Preto (AM), Munduruku (PA), Kayapó (PA), Alto Rio Negro (AM), Raposa Serra do Sol (RR), among many others”, says the text.

“The presence of illegal prospectors in these territories is a permanent threat to the right to life, health, an ecologically balanced environment and the territorial protection of indigenous lands, as well as their social organization.”

The folder also reinforces the law’s correlation with the humanitarian calamity of the Yanomami.

The Ministry of Justice and the Federal Police expanded their arguments along the same lines. In the understanding of the Secretariat for Access to Justice, there is no doubt that good faith releases the DTVMs from controlling the origin of the product, “since it provides for the presumption of the legality of the gold and the good faith of the acquiring person, allowing that all the gold illegally originating from the Amazon is disposed of with the appearance of legality”.

The demonstration also associates the norm with the expansion of gold mining in the Amazon, especially in indigenous reserves and conservation units.

“This is an important cause of deforestation, environmental degradation, contamination and conflicts”, says the text.

The General Secretariat for Litigation, in turn, included in the position of the folder an analysis of the area responsible for the strategy to combat corruption and money laundering, which directly questions the article of good faith.

“It is, at the very least, out of step with reality, as it points to the presumption of veracity precisely in one of the most fragile and vulnerable links in the gold production chain, the link over which in practice there is less control and in which numerous cases of false information are identified “, says the text attached to the process.

The manifestation of the executive board of the Federal Police follows the same line. She requested contributions from the Amazon and Environment Directorate, and the conclusion is that “the rule has had negative effects on the control of mining activity”, in addition to “harmful effects on the environment and the populations of areas affected by exploitation”.

In an interview with Sheet, published on Friday (17), delegate Humberto Freire, who heads the Amazon and Environment Board, reaffirmed the position. “How are you going to assume good faith many times from people who have already proven to have committed environmental crimes?”, He questioned.

The AGU’s position on the issue of good faith is interpreted among environmentalists as part of the package of measures to reinforce the Lula government’s image in the environmental area. The AGU has already manifested itself in at least ten actions in the Supreme Court in an attempt to suspend the judgment or present mitigating factors for green agenda processes.

The AGU is especially focused on reviewing the so-called unconstitutional state of affairs, a type of decision-making technique that is applied when it is assumed that there are serious and systematic violations of fundamental rights, caused and sustained by omission of public policies.

Within this perspective, the positions of the MMA (Ministry of the Environment) drew the attention of specialists.

On February 1st, the MMA signed a technical note dealing with the effort to regularize the mismatches in the environmental area.

“The Ministry of the Environment and Climate Change, since January 1, 2023, has been working in a Herculean way, through a series of actions, demonstrated and detailed here, in the sense of rebuilding Brazilian environmental public policies, reversing thus, the unconstitutional state of affairs in the environment, for which the country was recognized”, says the text of the note.

In a manifestation to the AGU, on February 26, already within the discussion of the ADIs, the portfolio reinforces that good faith cannot be used in Brazil, recognizing that the current unconstitutional state of affairs prevails —the one that the AGU wants the STF to consider it closed since the inauguration of Luiz Inácio Lula da Silva.

A Sheet, the AGU reaffirmed the position sent to the STF.

He pointed out that, in his assessment, the withdrawal of the 2013 law, “by declaring its unconstitutionality, could further weaken the gold trading system and its inspection”.

In the assessment of the AGU, the law does not exempt the buyer from checking the origin of the gold and the regularity of the documentation presented by the seller, and also does not exempt the authorities from charging the origin of the metal.

“The subsequent liability of the acquiring legal entity and/or the seller is not ruled out, if the occurrence of fraud or illegality in the purchase is proven”, says the agency.

The MME (Ministry of Mines and Energy) was the only one to assume the constitutionality of good faith. The portfolio’s legal consultancy declared that it did not have the competence or technical aptitude to point out the unconstitutionality. However, he said he believed in it, since the law was passed by Congress.

_{The Planeta em Transe project is supported by the Open Society Foundations.}