Mineração em terras indígenas: autodeterminação dos povos, princípio da harmonia com a natureza e interpretação constitucional
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2023-04-14
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Universidade Federal de Goiás
Resumo
Unlimited 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.
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Citação
CABRAL, M. B. Mineração em terras indígenas: autodeterminação dos povos, princípio da harmonia com a natureza e interpretação constitucional. 2023. 279 f. Dissertação (Mestrado em Direito Agrário) - Universidade Federal de Goiás, Goiânia, 2023.