Autodeterminação indígena e megaprojetos econômicos: o desafio do diálogo intercultural no Brasil

Abstract

This dissertation investigates the implications of the guideline of intercultural dialogue in the context of economic megaprojects in indigenous lands. Its general objective is to discuss these implications within the Brazilian legal system. To this do so, the investigation was divided into three parts. In the first part, was presented the theoretical framework that inserts interculturality allied to the new conception of pluralistic constitutional state, including the Brazilian state and how it became a challenge for the legal logic, which operates trying to be a stabilizer of meanings. In the second part, parameters were outlined for understanding interculturality and intercultural dialogue and how they relate to the promotion and strengthening of the rights of indigenous peoples. Special focus was given to the rights of self-determination and prior consultation, as well as to the rights of peoples and specific state duties in the context of economic megaprojects, according to what disciplines the Inter-American System of Human Rights. Furthermore, it was demonstrated that in case of dispute resolution, interculturality demands reflections in the use of classical postulates as reasonableness and proportionality. In the third part, these parameters were inserted from the specific perspective of the Brazilian context, performing comparative analyses that allowed us to conclude that the interpretation conferred by the Brazilian Supreme Court to Article 231 of the Brazilian Constitution, through the judgment of Petition 3388 (Raposa Serra do Sol Indigenous Land) distanced itself from a control of conventionality, as well as that Brazil and Bolivia violated intercultural dialogue , respectively, in the cases of Tucuruí Transmission Line and TIPNIS. The method is empirical research, the reasoning used was the predominant inductive, and the technique of data collection was the bibliographic review in doctrine and in official documents such as legislation, processes and judicial decisions. In order to enable observation, inference and generalizing systematization on how to apply intercultural dialogue in the context of economic development, data were collected from reports, consultative opinion and judgments given under the Inter-American System of Human Rights. At the end, it was concluded that the research had completed its objectives, by scoring all the results achieved. The following stand out: (i) intercultural dialogue imposes changes in the stabilizing logic of meanings of Brazilian law; (ii) it is possible to systematize the rights of peoples and specific state duties arising from intercultural dialogue in contexts of economic megaprojects, which must be fulfilled in the light of control of conventionality; and (iii) the Brazilian Supreme Court needs to adopt a more progressive stance in the protection of the territorial rights of indigenous peoples in the context of economic megaprojects to enforce its current guideline of intercultural dialogue.