A demarcação de terras indígenas e sua função socioambiental: os obstáculos do Parecer nº 001/2017/GAB/CGU/AGU

Abstract

The present dissertation addresses the demarcation of indigenous lands and their socio-environmental function, criticizing Opinion No. 001/2017 / GAB / CGU / AGU. The indigenous peoples living in Brazilian lands underwent extensive transformations dating back to the 1500s. The work has a predominantly bibliographic character, citing authors recognized for their knowledge about the subject. The determination of concepts and introductory subjects are of a descriptive nature, whose information has been collected mainly from doctrines, scientific articles and previous legislation, already revoked, in order to present its history and current legislation, in order to point out the current issues. Initially, historical research was used, bringing legal elements and practical situations, punctuating issues such as the enslavement of the natives and the process of suppression of their lands by the colonizers, in order to raise the grounds exposed later. Developing, the theme of land demarcation, with its development, legislation and current situation is covered. The socio-environmental function exerted by indigenous peoples, mainly for the preservation of biodiversity, a determining factor for a harmonious and sustainable environment. The work is justified by the social function and the primordial participation of indigenous peoples in the preservation of natural wealth, as well as their relation with nature. The purpose of this study is to study the relationship between the current legal system and its foundations and the socio-environmental function as a counterpoint to the obstacles encountered in demarcation processes in indigenous areas, dictated by the opinion with binding force issued by the Executive Branch under number 001/2017 / GAB / CGU / AGU. It is questioned, in a first moment, if the conditions imposed by the Executive Power in the referred Opinion to the demarcation procedure of indigenous areas conform to the norms expressed in the Constitution and, in a second moment, if this normative direction brings a developmentalist position in detriment to the socioenvironmental function practiced in the areas designated as indigenous reserves?. In dealing with the new indigenous policy, the Brazilian legal system, with emphasis on articles 231 and 232 of the 1988 CRFB, is the International Treaties, in particular Convention 169 of the International Labor Organization on Indigenous and Tribal Peoples and the Declaration on the Rights of Indigenous Peoples adopted by the General Assembly of the United Nations. The issue was discussed in Opinion 001/2017 / GAB / CGU / AGU, inspired by the conditions created by Petition No. 3.388 / STF, criticizing the counterpoint to national legislation and international treaties that should have been observed and considered and demonstrations of other organizations in response to the opinion. It is also the discussion about Brazilian socio-biodiversity, its recognized richness and importance in the world scenario, whose perspective is the deterioration due to the diminished recognition of the rights of those who most protect and practice socio-biodiversity, indigenous peoples. Finally, the jurisprudence of the Federal Supreme Court on the demarcation of indigenous lands is studied, presenting the understanding of the Ministers in this respect punctuated in several decisions and the existence of the theses of the temporal framework and the occupation, which sediment several judged. As a result of the research, it is pointed out that the Opinion under study imposed a series of constraints on the demarcation procedure for the recognition of areas traditionally occupied by indigenous peoples and the treatment of the matter by the Judiciary resembles the right of civil property.