2023-05-24 17:00:00
* Article originally published on the website of ((the echo))
On May 22, the Federal Supreme Court (STF) unanimously decided that concessions of Conservation Units to the private sector, by the State of São Paulo, cannot affect indigenous territories, quilombolas and other traditional peoples and communities. The STF also decided that indigenous peoples and traditional communities must mandatorily be consulted when they are directly affected by occupying regions close to Conservation Units that may be granted to the private sector.
The decision was taken in the records of the Direct Action of Unconstitutionality nº 7008, an action that resulted from the articulation of the Forum of Peoples and Traditional Communities of Vale do Ribeira (FPCTVR) which, in 2016, presented representation to the Attorney General of the Republic (PGR) before the framework of violations of rights of indigenous peoples and traditional communities on the occasion of the enactment of State Law No. 16,250/2016.
The aforementioned law authorized the State of São Paulo to grant ecotourism services and commercial exploitation of wood and forest by-products to the private sector in 25 State Environmental Conservation Units. The representation prepared by the Forum and addressed to the PGR reported that the enactment of State Law No. 16,250/2016 occurred in disrespect for the right to free, prior and informed consultation, provided for in art. 6 of Convention 169 of the International Labor Organization (ILO).
In the representation, the Forum also indicated that there were overlaps between Conservation Units and territories of indigenous peoples and traditional communities, asking the PGR to adopt measures with the STF to guarantee their collective rights.
According to the Forum, the area of seven of the 25 Conservation Units listed in Law nº 16.260/2016 are, partially or totally, overlapping with 18 traditional territories of indigenous peoples, quilombolas, caboclas and caiçaras.
Intervales State Park and Carlos Botelho State Park overlap the Peguaoty Indigenous Land. The Alto Ribeira Tourist State Park overlaps the territories of the quilombola community of Bombas and the caboclo communities of Ribeirão dos Camargos and Sítio Novo.
The Caverna do Diabo State Park overlaps the territories of the quilombola communities of Piririca and Praia Grande. In turn, the Serra do Mar State Park overlaps the Tenondé Porã Indigenous Land, the Rio Branco de Itanhaém Indigenous Land, the Aguapeú Indigenous Land, as well as the territory of the Quilombo da Fazenda.
The Jaraguá State Park overlaps the Jaraguá Indigenous Land, and the Ilha do Cardoso State Park overlaps the Pakurity Indigenous Land, as well as the territories of the caiçara communities of Pereirinha/Perequê, Cambriú, Foles, Marujá, Nova Enseada da Baleia, and Pontal do Leste.
With the decision of the STF, the State of São Paulo is prohibited from granting concessions that affect the territories of these communities, since they overlap with Conservation Units listed in Law nº 16.260/2016. At the same time, if the State of São Paulo builds concession projects in these Conservation Units, even if the projects are not superimposed on traditional territories, prior consultations must be carried out with the surrounding traditional communities.
From a practical point of view, the STF decision prevents, for example, the State of São Paulo from granting tourist attractions located in the Alto Ribeira Tourist State Park (PETAR) and which are located in the territory of the traditional Cabocla community of Ribeirão dos Camargos.
In 2021, the State of São Paulo launched a public consultation regarding the proposed concession of PETAR to the private sector. After pressure from the local population, traditional communities, the change of command in the Government and due to court decisions, the project is paralyzed.
Read also: Local social movements protest against the privatization of Petar in Vale do Ribeira (SP)
The same understanding applies to other situations in which there are land conflicts between the State of São Paulo and traditional communities, especially in situations where the State resists recognizing the existence and rights of populations, as in the cases of the State Park do Jaraguá, in the Ilha do Cardoso State Park and in the Serra do Mar State Park.
Despite the decision to refer to a São Paulo law, there is no doubt that the STF decision has an impact on similar situations throughout the country. This, since the unanimous decision of the STF preventing the granting of Conservation Units to the private sector in portions overlapping traditional territories will apply in any similar case, unless the STF changes its understanding.
However, more than prohibiting the State from granting what is not its own to the private sector, traditional communities still face many challenges, and the priority is the land tenure regularization of traditional territories. Should traditional communities go to the STF to demand progress in the unconstitutional state of delay in land regularization, or will the State come out of the state of hibernation in the recognition of rights to comply with the law and, finally, title the traditional territories?
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