Mestrado em Direito Agrário (FD)
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Navegando Mestrado em Direito Agrário (FD) por Por Orientador "Fontenele, Alysson Maia"
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Item Mineração em terras indígenas: autodeterminação dos povos, princípio da harmonia com a natureza e interpretação constitucional(Universidade Federal de Goiás, 2023-04-14) Cabral, Marcelo Budal; Fontenele, Alysson Maia; http://lattes.cnpq.br/5916938811645981; Fontenele, Alysson Maia; Dantas, Fernando Antonio de Carvalho; Mamed, Danielle de OuroUnlimited economic growth, with disregard for planetary limits, is a project without a future (without Nature there is no life). From the interpretation established by the Inter-American Court of Human Rights (I/A Court H.R) expressed in the Advisory Opinion 23/2017, recognizing (i) the interrelationship between human rights and the environment and (ii) the autonomy of the right to a healthy environment (autonomous law, which prescribes the duty of protection to all beings of Nature as legal interests in themselves, regardless of affecting any human right), understanding ratified in the contentious case of the Lhaka Honhat Indigenous Communities versus Argentina, there is a new paradigm under construction, which requires re-readings and resignifications of all legal provisions (evolutionary interpretation), including the Federal Constitution (constitutional mutation). Rights of Nature mark an ecological transition in law, a transition of paradigms that imposes the duty to act in accordance with the principle of harmony with Nature. It is the abandonment of anthropocentrisms (classic and mitigated) towards biocentrism/ecocentrism, which recognize to Nature and beings of Nature the ownership of rights, breaking with the dualism between humanity and Nature, not admitting its split. As a consequence, alternatives to development are needed, which, in practice, are implemented with a transition regime (agroecological, energy and a circular economy). Thus, although contemporary (complex) societies and (cultural/social) life as we know it are dependent on mining, respect for ecological cycles determines limits to this activity. There is also the right to self-determination of indigenous peoples (the right of a people to exist as such, a right of existence or coexistence, that is, the opposite of acculturation and assimilation). Mining on indigenous lands cannot continue without respect for the will - selfdetermination - of indigenous peoples and without respect for the rights of Nature (new rights holder, also called to demonstrate). The central problem is: in a normative system that ensures the right to selfdetermination of indigenous peoples and the rights of Nature, is mining allowed? The hypothesis is that for places where mining already exists, a transitional regime must be ensured. For the places where life in harmony with Nature already exists, it is not a case of transition, but of protection, to allow its continuity/ existence. The objective is to investigate the possibility of mining in indigenous territories, considering the right to self-determination of affected peoples and the rights of Nature (recognized its application in Brazil, from a re-signification of the Constitution - including the entire block of constitutionality and precedents of the I/A Court H.R – supported by the biocentric/ecocentric paradigm). The chapters of the research deal with the right to self-determination, the rights of Nature and the duty of transition. The research methodology consists of an interdisciplinary literature review on the subject, documentary analysis (case analysis), hermeneutic approach to the doctrine, the precedents of the I/A Court H.R and other Courts, and comparative constitutional analysis about the rights of Nature. It is a bibliographical, documentary and comparative constitutional analysis, with a hermeneutic approach. The theoretical framework is divided into several parts (according to the chapters), having as main references Germana de Oliveira Moraes (harmony with Nature) and HansGeorg Gadamer (hermeneutics). Finally, on the possibility of realization of the rights of Nature, the method is the hypothetical-deductive.Item Função contramajoritária do Supremo Tribunal Federal na proteção dos elementos culturais imateriais dos povos indígenas(Universidade Federal de Goiás, 2023-05-03) Caixeta, Marília Araújo; Fontenele, Alysson Maia; http://lattes.cnpq.br/5916938811645981; Fontenele, Alysson Maia; Munhoz Caleiro, Manuel; Silva, Liana Amin Lima daThe theme of the dissertation promotes a reflection on the role of the judiciary in protecting the intangible cultural rights of indigenous peoples, understood as a subjective cultural space that demands attention for its perpetuation over time. Thus, the research problem is whether there is a power-duty of the countermajoritarian role in protecting the cultural rights of indigenous peoples. In turn, the hypothesis resists in the affirmation that there is a function in the Federal Constitution, at the same time that this function can be a remedial mechanism for the violence suffered by native peoples. The general objective is to penetrate this subjective cultural space in modern legal dogmatics and to value it. In view of these needs, the research supports the basic theories and thoughts built by Peter Haberle and Boaventura de Souza Santos, in order to try to make a paradigmatic transition of the current judicial system, so that it reaches legal pluralism and effectiveness of the diversity of rights that are affirmed. The method used is the hypothetical-deductive, using bibliographic technique and comparative analysis of judicial decisions. Finally, the research shows the importance of rethinking the role of countermajoritarianism by expanding the interpretation of the constitutional norm beyond state institutions, because for the legitimacy of the Democratic State of Law it is necessary to insert other more democratic interpretations. The broadening of the interpretation allows the re-signification of law, as an autonomous social field, for social transformation, since the current judicial system, rooted in hegemonic western assumptions that need to be brokenItem A política de regularização fundiária de assentamentos rurais executada nos termos da Lei nº 13.465/2017 como forma de consolidar os descaminhos da reforma agrária(Universidade Federal de Goiás, 2022-08-31) Dias, Carla Fernanda Rodrigues; Fontenele, Alysson Maia; http://lattes.cnpq.br/5916938811645981; Fontenele, Alysson Maia; Siqueira, José do Carmo Alves; Freitas, Cleuton César Ripol deThe realization of the socio-economic objectives and goals of the agrarian reform was reduced to insignificance with Law No. 13.465/17, which, among other issues, aims at the emancipation of old settlements that have been created for 15 years until the promulgation of the aforementioned law, which will be consolidated and emancipated through the execution of the Land Regularization Policy through the Land Registry and Land Regularization Program and following up with the successor Program Titula Brasil. This new program aims at the regularization and negotiation of titles to the tracts of land held by the settlers, to be delivered against payment in order to become the private owners of such lands. In this sense, the study seeks to analyze the current scenario of agrarian reform in order to demonstrate the structural difficulties to be faced by settlers; analyze the (in)effectiveness of the agrarian reform implemented under the support public policies developed and transformed with the support of the democratic model built in the country's legal system. Then, the analysis will be developed based on the objectives and goals set forth in the National Plans for Agrarian Reform - NPAR as opposed to some public policies to support agrarian reform developed through federal programs responsible for attempts to achieve the objectives and goals set forth in the body of NPAR. Criticisms were also built based on the theories of southern epistemologies, ecology of knowledge, post-abyssal thinking and the sovereignty of society in democratic systems that have characteristics of totalitarian regimes in order to demonstrate the findings regarding the (in)sufficiency of the socioeconomic conditions of the settlers to emancipate themselves, conditions arising from the (mis)paths of public policies to support agrarian reform studied and used as a sample in this research. As hypotheses, it is possible to visualize the capacity to finish the agrarian reform and still privatize all the conditions of access to land or insufficiency and increase in the difficulty of access to the policies responsible for making the settlers' socioeconomic development viable. Both results will put pressure on settlers and result in vulnerability and exposure to financial speculators, increasing the number of parcel sales, which will intensify the process of reconcentration of land in the country, especially because settlers would not obtain the necessary public support for the effective achievement of the objectives of agrarian reform.Item Mulheres rurais e política pública de crédito: análise dos arranjos jurídicos institucionais do Pronaf-Mulher no município de Iporá(Universidade Federal de Goiás, 2021-09-28) Oliveira, Wanessa Honorato de; Fontenele, Alysson Maia; http://lattes.cnpq.br/5916938811645981; Fontenele, Alysson Maia; Siqueira, José do Carmo Alves; Moi, Fernanda de Paula Ferreira; Chehab, Isabelle Maria Campos VasconcelosThis research aimed to verify the construction of institutional legal arrangements of the National Program for Strengthening Family Agriculture, in the “Woman” modality (Pronaf-Mulher) through the analysis of access to resources by farmers in the microregion of Iporá. The theoretical framework of this Maria Paula Dallari Bucci and Fabio Konder Comparato who discuss the intersectionality of law and public policy. For the study, the deductive hypothetical method was used, through bibliographical research and data collection through interviews collected with 10 (ten) farmers and 1 (one) technician from Emater. It was found that the public policy does not reach rural women living in the locality, despite the desire of most of them to have access to some form of financing. We sought, then, to investigate the reasons that could justify the lack of reach of the resources to the real recipients. The research pointed out that despite the legal provision regarding the provision of resources for rural women, the normative is not built under a gender difference approach. The institutional design of the public credit policy for women is based on a general normative basis, which disregards the condition and consequences of patriarchy and the submission of rural women. The lack of openness and willingness to include the issue of gender in credit operating institutions is axiomatic; so that the rural credit program is designed to increase income-generating opportunities, particularly for the family sector, for the benefit of male producers, since women farmers do not have a presence in public spaces to increase access to credit. They realized the invisibility nature of women's work, since the activities they carry out in the rural environment are not considered as work, but as help tasks. to men. Finally, it was noticed that the credit policy arrangements as they are developed are not effective in the microregion, however, if there are changes, it can be an achievable instrument. Therefore, greater openness is needed for the inclusion of gender issues in the different institutions that operate credit and in society as a whole. The lack of economic perspective for women in rural areas is greater than for men, which has contributed to the exclusion of these women farmers, and the evolution of normative construction is a way to establish this social balance.