Journalism from the center of the world

Indigenous protest in Brasilia against illegal mining in April 2022. Photo: Tuane Fernandes/Greenpeace

The ongoing genocide of the Yanomami – as well as the atrocities against the Munduruku, the Kayapó and other indigenous peoples on whose territories gold is found – is neither an accident of fate nor solely the result of the greed of mining bosses. First and foremost, it is the predictable result of the policy adopted by the government of Jair Bolsonaro during his term in office. But this policy was aided, to a very substantial degree, by extremely flawed regulations, in particular six articles of Law 12,844, of 2013, which made it virtually impossible to detect and penalize illegal trading in gold. As was revealed to the public by Marcos Lisboa’s column in Folha de São Paulo newspaper on February 8, these articles were proposed by a Workers Party federal deputy from the State of Minas Gerais, Odair Cunha, with the support of the House Speaker, Arthur Lira (Progressive Party from the State of Alagoas) and snuck into the text of a Provisional Measure dealing with agriculture by the rapporteur Eunício Oliveira (Brazilian Democratic Movement Party from the State of Ceara). Everything was sanctioned by then-president Dilma Rousseff (Workers Party) without veto. These articles are now being challenged in the Federal Supreme Court by the Green Party, which is asking for them to be annulled on the grounds that they are unconstitutional.

However, there is a much speedier and more effective way to stop the harmful impact of this law: all Lula needs to do is to issue an immediate Provisional Measure.

This is a power granted only to the President of the Republic. According to the Constitution (article 62), it should only be used in relevant urgent cases. What could be more relevant and urgent than eliminating one of the main incentives to an activity that is killing children and old people as a result of malnutrition, mercury contamination and forest devastation? Rarely has a Provisional Measure been so in alignment with constitutional criteria.

The president has a moral and legal duty to do everything in his power to prevent this suffering that has been unjustly and illegally inflicted on indigenous peoples. And the fact that this disgraceful law was created by a federal deputy, and sanctioned by a former president, both of whom belonged to President Lula’s own party makes this obligation even stronger. Furthermore, in light of the current context of a declared health emergency, it would be politically harmful for federal deputies and senators to reject the proposed Provisional Measure.

There is no way to justify the six articles remaining in force. In a democratic state based on the rule of law, legislation is expected to be created through a process that meets at least minimum standards of honesty, transparency, representativeness, and compliance with the rules established by Congress. This is not what occurred in the case of Law no. 12,844. As already mentioned, it is not an autonomous law, where a systematic approach can be claimed, approved after adequate discussion and refinement by the members of congress in committees, as one would expect for such an important matter. Rather, it is an example of so-called “jabuti” (tortoise) tactics – a last minute ruse to include articles in a law that deals with a different subject. This is expressly forbidden in the case of Provisional Measures. In a 22-page opinion, the only reference to the articles made by the rapporteur Eunício Oliveira is a paragraph of 10 lines, in which the measure is justified by the supposed need to “provide legal security” for gold miners and gold buyers and to take into account the “sector’s practices and customs”.

Of the six articles, the one that is the most damaging to indigenous peoples and the environment, exempt buyers of illegal gold from liability based on a presumption of good faith that releases them from any duty of care regarding the verification of the gold’s origins. It would be enough for the buyer to simply believe the information provided by the seller and keep it on file for ten years. It would be like exempting the buyer of a stolen car from any responsibility as long as he carried a fraudulent declaration from the criminal seller that the vehicle he sold was not stolen, in his glove compartment for ten years. This is nothing more than a license for illegal gold panning, as shown in the excellent study carried out by the Federal Public Prosecutor’s Office in collaboration with the Federal University of Minas Gerais.

Therefore, there is no reason whatsoever for President Lula to sit on his hands and hope this legal monstrosity will perhaps one day be annulled at the end of a long and painful judicial process in the Federal Supreme Court. The responsibility to correct this distortion, which is contributing to death, disease, and degradation of entire communities, lies both with Lula’s newly elected government and with the National Congress, in particular with the current House Speaker, the Federal Deputy Arthur Lira, whose fingerprints are also on the articles to be revoked.

The fact that the new government is attempting to tackle the serious problem of illegal mining in the Amazon is a positive step, although it is too late to avoid the tragedy of the Yanomami and other indigenous peoples that was foretold. But the removal of the miners is just a temporary solution. If the huge incentives that are in place are not eliminated, the miners will return, as they have done so many times before. Immediately revoking the presumption of good faith on the part of the gold buyer by means of a Provisional Measure is a simple, quick and effective measure that President Lula has at his disposal for solving an important part of the problem. Any failure to use this power would be an omission that implies moral, political and legal responsibility. Take action, Mr. President.

Octávio Ferraz is a professor at King’s College London and director of the Transnational Law Institute.

Thomas Bustamante is a professor at the Law School of the Federal University of Minas Gerais and a Research Productivity Fellow at the Brazilian National Council for Scientific and Technological Development.

Translated by Mark Murray

© All rights reserved. Written authorization must be obtained from SUMAÚMA before reproducing the content of this page on any channel of communication