Proteção ambiental versus proteção indígena: conflito ou consenso?

Abstract

This work seeks to verify whether there are conflicts or legal consensus between indigenous protection and environmental protection when these territories overlap. Through the hypothetical deductive method, with the bibliographical review of legislation, doctrine, national and international jurisprudence, the way in which the understanding has been adopted for cases where there is an overlap in these areas will be examined, considering that both protections have constitutional provisions. We began the research with the hypothesis that the overlap would cause conflict, as it would affect the main objective foreseen in the normative act that delimited and formalized the creation of the territory. However, the democratic consolidation in the country that began with the decline of the military regime gave civil society a broad space for mobilization and articulation, which resulted in strategic political alliances between the social and environmental movements, united in defense of their interests, which sought development. economic, social, linked to environmental protection. From these movements, the idea of conservationism, which removes the possibility of environmental preservation with human presence, is dismissed, giving rise to the aspect of socio-environmentalism, which provides for the compatibility of human presence in specially protected areas and which is included in the Federal Constitution. In accordance with some normative provisions, guidelines from the Federal Public Ministry and rulings from the Federal Regional Court, the Federal Supreme Court and the Inter-American Court of Human Rights, it was found that this entire legal apparatus considers compatibility between indigenous territories and territories destined for environmental protection. Therefore, contrary to the initial hypothesis, indigenous protection reconciles with environmental protection, and the particularities of each case must be analyzed, in a transparent manner and with the inclusion of all those involved, thus seeking the most favorable adjustment for indigenous protection. and environmental protection.