O conflito entre as novas políticas de exploração mineral e os direitos e garantias de povos indígenas: uma análise sobre o Novo Código de Mineração enquanto dispositivo e seus efeitos no ordenamento jurídico brasileiro

Abstract

Between 2020 and 2021, the Chamber of Deputies debated the creation of the New Mining Code, to replace the 1967 Mining Code. This movement generated a sense of legal uncertainty, since the political context of this discussion was marked by the anti-environmentalist stance of the then-current government. The proposal for the New Mining Code was presented by Report No. 1 and Report No. 2, both from 2021. The idea is to make mining an activity of public utility, of social interest and essential to human life. The content proposed by the new code clashes directly with other rights and guarantees, mainly of indigenous and traditional peoples. According to art. 15 of Convention 169 of the International Labor Organization (ILO) the ownership of ores or subsoil resources belong to the State, and the governments must consult the peoples concerned, to understand if the interests of these peoples would be harmed. In the same sense, art. 231, § 3 of the Federal Constitution of 1988 expresses that there is the possibility that affected communities have the power of veto, when the undertakings are considered harmful to their interests. In this sense, the idea of this research is to understand this whole situation through the concepts of “device” and “state acts”, worked by Foucault and Bourdieu, respectively. The purpose is to understand the movements of the New Mining Code, as proposed by GTMINERA, as a strategy to reverse the effects of laws enacted after the country's redemocratization, which limited the excesses provided for by the 1967 Mining Code. Keywords: Dispositive; Effects; Indigenous People; Mining.