Os direitos ambientais dos povos indígenas

Abstract

The analysis of the fundamental right to the environment and the rights of indigenous peoples together allows the construction of a concept of environmental rights of indigenous peoples, because environmental rights is a building much larger than the enclosed content to the fundamental right to the environment seated in the Brazilian Constitution, in Article 225. In the case of environmental rights of indigenous peoples, it’s proposed a direct relationship between the rights associated with the Article 231 of the Constitution and those existential realities listed under the protection of Article 225. The study proposes to construct a notion of environmental rights of indigenous peoples, under the constitutional approach. The choice made here is justified by the aim to show that the protection offered to indigenous peoples limited by the territorial and cultural rights expressed in Article 231 would be an imperfect and incomplete protection if it was not possible to recognize that Article 225 assumes a protection that extends beyond the natural environment. It is proposed that the text of Article 225 must be understood as an open reference to communication with other realities related to the purpose of ensuring the protection of broader existential realities, and that possess the natural resources as a vector of a differentiated model of human development. The construction of the definition of environmental rights of indigenous peoples is the result of an open architecture that provides a legal composition of legal experience, which strengthen, define, clarify and refine the national experience, to enable and provide that it can be to proposed special rights’ protection, such as environmental rights of indigenous peoples. It’s reached the definition that the environmental rights of indigenous peoples constitute a complex of interdependent rights relating to the protection of the good life of indigenous peoples in the context of existential realization of their projects, these notions are closely connected to the healthy environment, a fundamental right inserted in the Brazilian Constitution. Finally, it’s analyzed how the environmental rights of indigenous peoples are addressed in national legal experience and how they could offer a complete and sufficient protection if they observed certain external legal experience.