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Between September 2014 and March 2015, the community of Brazilian archaeologists was in an uproar. There was the leak of a document to be issued by the National Institute for Historical and Artistic Heritage Preservation (thereafter IPHAN) , the Federal law-enforcement organ responsible for the preservation of the archaeological heritage. This document, which would be later known as Normative Instruction 01/2015 (thereafter IN 01/2015Footnote 1), provided for the entire legal process related to the preservation of the archaeological heritage in environmental licensing processes. Immediately, there was a manifestation of the Public Attorney for the Defense of Justice Heritage of Minas Gerais, Marcos Paulo Miranda, who attacked the document vehemently.Footnote 2 The IPHAN, in turn, reacted batting (to some extent) some of the criticism. The fact is that the document was being gestated without proper transparency, which caused understandable outrage of the archaeological community, many archaeologists were afraid of losing their jobs, which effectively will not happen.

What exactly says this document, and how it differs from previous standards? I will try to summarize it as best as I can, of course applying my own experience and point of view. Such is definitely a boring activity, but we cannot deny that it is important to know the law, if only to swindle it, as some do. I will return to this point later.

Basically, IN 01/2015 strips IPHAN the power to “meddle” in each and every environmental licensing process. With the previous standard, which was Ordinance 230, IPHAN was part, automatically, of the environmental licensing process. Now, it has to be invited to manifest. If not invited, IPHAN can still manifest itself and ask to be included, but this is case by case. An interesting point is that, from the onset, to be able to be evaluated by IPHAN, you need to have the area of ​​the enterprise in a “shapefile”. I do not know what this is. I imagine it is one of those geographic information system file formats. A map with good old geographical coordinates or UTM is not enough. A masterpiece of bureaucracy. However, this “new” secondary role of IPHAN in the environmental licensing process is not something the IN 01/2015 created; The Normative Instruction just followed what was approved by the Interministerial Ordinance 419, October 2011,Footnote 3 which had already taken this power of IPHAN, along with the National Foundation for the Indian Welfare (FUNAI), Palmares Foundation (related to slave descendants), etc. Let us not disrupt President Lula´s/Dilma´s “Program for Acceleration of Economic Growth” (PAC), please.

Also, according to the letter that IPHAN issued in response to Public Attorney Marcos Paulo Miranda, Ordinance 230 of IPHAN was an “infra-legal standard” that did not guarantee the obligation of IPHAN’s presence in the environmental license. What they did not mention is that now we are in the same situation, because IN 01/2015 is also an infra-legal standard and does not guarantee anything. But before nobody knew it! If formerly IPHAN was automatically part of the environmental licensing, now it is explicitly written that IPHAN should be invited to manifest itself.

However, an undeniable advantage of the Interministerial Ordinance 419 is that it provides deadlines. IPHAN should issue a decision within 90 days. I know of colleagues who have come to wait 2 years for the publishing of a miserable archaeological digging permit. Guess what happens? The archaeological excavation is done anyway. Nobody can wait 24 months for a simple “ok”, especially when there are tractors and hundreds of workers waiting in the field. When the permit is published, archaeologists say “thank you”, but the work has been done a long time ago. This kind of slowness is extremely delirious for IPHAN´s image, as one can imagine, and was probably one of the reasons Interministerial Ordinance 419 was issued.

1 Contract Archaeology in Practice: The Role of IPHAN and the “2012 Mistake”

Well, enough of legislation. Let us think about what happens in practice today in relation to contract archaeology . Until recently, some Regional Superintendencies of IPHAN, including the 9th at São Paulo State, accepted the so-called “noninterventive diagnostic” . It was a way, in my view legitimate, to expedite an extremely time-consuming process. Instead of waiting months for an authorization of IPHAN, it was possible for the archaeologist to visit the site of implementation of the project and issue a preliminary report. If the place was absolutely destroyed, for example, a factory yard deployed in a place where it had been made a deep cut on the ground with rock outcropping, and where they intended to carry out an expansion of the built area, the archaeologist could say that the archaeological potential was null. With this, it was saving a lot of time, paper, and money. Lest anyone think that the archaeologist could eventually provide a false diagnostic, to see that this alternative would not be necessarily favorable to the rogue archaeologist. In fact, an archaeologist earns a lot more money “saving” a site or “monitoring“ an area than saying that there is nothing worth of saving. In any other situation, the noninterventional diagnostic would say “yes, it is necessary to carry out an archaeological survey,” and yes, this would require a project and all the paperwork involved. Even in these cases, with the necessity of a proper survey and excavation project, the figure of the noninterventive diagnostic at least gave to the entrepreneur the impression that something was being made. However, IPHAN revoked it in December 2012, as a kind of Christmas gift, by means of a memorandum.Footnote 4 No more noninterventional diagnostic. The rationale was that without a project, the IPHAN technicians could not say that an area had archaeological potential or not. I beg your pardon? A project is just an idea of ​​what you want to do in the future. It is not a report or an assessment. What happened in sequence, at least in São Paulo, which is the state where most contract archaeology is done, was an endless line of research projects to be implemented in areas where they would be absolutely unnecessary, followed by a huge delay in publication of excavation permits, given the small cadre of professionals to judge these projects. To make matters worse, there is a rule that requires IPHAN technicians to approve the sending of charcoal samples abroad for dating. Geologists send samples at ease, but charcoal from an archaeological site is considered National Heritage that is sacred. In short, the entrepreneur would wait months for the archaeologist to go out in the field one day, make some holes, and state the obvious. This gets really bad because if we make the role of devil’s advocate, booking market or corporatism is suggested. From the entrepreneur´s point of view (and engineers are generally not dumb), to postpone civil works in a totally reworked area because of the supposed presence of archaeological sites seems just a way to ensure archaeologist´s jobs. It seems that we have a confusion between job creation and the real purpose of the law. The purpose of the law is not to create jobs but to ensure the protection of the archaeological heritage.

What was the impact of this combination of delays and bureaucracy? A general dissatisfaction with IPHAN , but we know that unhappy archaeologists and small entrepreneurs are the least of it. When the Capital is dissatisfied, it is where the problem starts. And the worst is that the Capital was not totally deprived of reason. Worse, things considered “urgent” as the hydroelectric plants of Belo Monte and Jirau, or that “white elephant” called São Francisco river transposition, received VIP treatment and had passed through the “fast lane”. Now we know that a massive corruption scheme was behind such works.Footnote 5 The rest of us, plain academic archaeologists, were waiting.

In my view, IN 01/2015 was aimed to try to remedy this situation (no doubt due to considerable pressures). But remember that this situation was enhanced by the elimination of noninterventive diagnostic , and this decision was made by the same IPHAN that now was required to edit the IN 01/2015.

Now, according to IN 01/2015, the enterprises were classified by levels, from I to IV, and one called N/A, which is “not applicable”. N/A is exactly what would be called a noninterventive diagnostic in a disturbed area, i.e., the norms do not apply in such cases. It does not need all the bureaucratic proceeding. What about Level I? Level I does not need anything but a term where the entrepreneur certifies that he will suspend works if he finds an archaeological vestige (!). It is the equivalent of saying that there is nothing in the place. At least in the case of the good old noninterventive diagnostic, an archaeologist would visit the place to say it. It was way better than N/A or Level I. In sum, ironically, we now see the coming back of the noninterventive diagnostic, stronger than ever, even if it was demonized by the same IPHAN in 2012.

2 Were Archaeologists Going to Lose Their Jobs?

Does this mean that archaeologists will go unemployed? Never! The Level II, which would be applied to various types of enterprises that are theoretically less destructive, implies the presence of an archaeologist in the field, which will be “monitoring” the work. It is the good old “monitoring”: days and days of the complete boredom, watching the bulldozers in action, or stand seeing workers planting seedlings. The effectiveness of this type of activity is, in my opinion, extremely questionable from the point of view of the preservation of the archaeological heritage. It is not possible to find a buried archaeological site in these conditions, without a systematic subsurface prospection, and without sieving the earth, just revolving the soil with a shovel, except in the case of monstrously dense sites, or funeral urns, or built structures. Housing projects between 6 and 30 ha are in this category, as well as plantations and reforestation between 101 and 1,000 ha. It makes little sense. Why does not a housing development project under 30 ha need a decent archaeology survey project, with test-pits, auger holes, sieving, etc.? A housing project has a definite impact in the subsoil, regardless of the size of the area. It means a lot of earthworks, street opening, sewage ducts, posts for electric line, and finally, houses will be built upon it. On the other hand, why an area of ​​planting or reforestation, of any size, needs archaeology? It is just a plowed tract with seedling planting activity. Especially in São Paulo, all such land has been cleared and plowed, if not in the mid-nineteenth century, certainly in the early twentieth century. It is not reforestation that will destroy the site. The growth of eucalyptus, pine trees, or sugarcane will not damage the subsoil more than the growth of roots from native trees. Again, as the devil´s advocate, one can eventually say that the idea is more related to extract money from the agribusiness and ensure jobs for archaeologists than to provide good archaeological preservation measures. A team of archaeologists losing their time and effort in this activity could well be digging holes in a housing development area under 30 ha.

What ends up happening with this “monitoring” , now called “accompaniment” (“acompanhamento”), is that the entrepreneur has to be paying at least one archaeologist, but more commonly a team of archaeologists, for weeks or even months, for an action that in itself is not effective for the preservation of the archaeological heritage. Admittedly, if a site is found in these conditions and the archaeologist send the word “stop the machines”, does someone believe there will be scope to preserve the site? No. What will happen is a hasty collection of whatever is there. I do not say that monitoring is never necessary, but there are cases where it is not absolutely necessary, and the entrepreneur would rather pay than have problems with the progress of the work. But from an ethical point of view, the archaeologist should assess the situation and, if necessary, refuse to do the monitoring. A North American colleague of mine did this, claiming that monitor an area where there was no reason to do it would be anti-ethical and would represent a kind of extortion upon the entrepreneur, but the developer chose to pay to have no problems, and other archaeology company ended up doing the monitoring. The result is that five archaeologists were paid during several days without doing anything, seated inside a car. It is not that they were lazy, just the fact that there was nothing to do.

Environmental impact studies do not have as a primary goal creating jobs. It is well known that some absolutely immoral archaeologists present extremely low prices for their work, win a bid, do a survey, find (or plant) something in the field and, instead of digging it all or propose the in situ preservation , appeal for monitoring . Thus, they shall be paid for months to do nothing.

It is not my goal to keep scrutinizing and criticizing the IN 01/2015. It brought some improvements over previous standards, and brought back the idea of reducing bureaucracy, establishing in practice the old noninterventive diagnostic , which makes sense. It is not perfect, but can be changed if necessary (I hope).

In my view, three topics should be prioritized in terms of contract archaeology : well done archaeological survey , in situ preservation, and dissemination of data. Regarding this last point, as will be seen, my view differs from the normal stance. I do not mean speeches and pamphlets, but the actual dissemination of knowledge in the academic community. It is from here that this material may be better known to the general public.

3 Mo´Better Archaeological Surveys

Starting with the first point, if the archaeological survey is well done, and if there is any site on a given area, it ends up being detected. If it is not detected by a matter of probability, because no test pit or auger hole hit a piece, it is something that is beyond human control. There is no exhaustive and infallible archaeological survey, but if the job is well done, the probability of detecting a site if any site is present is fair. Once you have done this survey, you can say if there is a necessity of any excavation or not. No need to pay someone to watch tractor work.

Once the archaeological material is detected, there will be an evaluation of the informative potential. I have worked in a place where we did hundreds of auger holes every 30 m, detected a small flake 1 m deep, then made several other holes around, and did not find anything. Not content, we opened a 2 m × 1 m trench exactly on the spot where the flake was found, and there was nothing. Obviously, in this case, it is not necessary to perform an archaeological dig. Even if we had found some more flakes, the only relevant information would be in terms of chronology. The result would be “found some flakes to 1.20 m deep, charcoal dated at 5000 years.” No need for other actions.

4 In Situ Preservation : Being Bolder

However, some cases are different. Very dense sites, or very old, or sites in areas where we have almost no data, could well be preserved in situ. This is especially true in the case of housing projects and linear projects such as transmission lines and pipelines. It is perfectly possible to slightly modify a design to let the archaeological site within a public square, or divert a transmission line, or the location of an electric tower, or to make a gas pipeline not to pass exactly over an archaeological site with high informational potential, if the archaeological survey is done in proper time. For this to happen, there must be timely actions from the archaeologist and from the entrepreneur, and timely answers from IPHAN . These kinds of sites cannot and should not be excavated to exhaustion. They should be left where they are. If after the end the work one wants to go back and dig properly, it is another story.

In the case of dams, there is also a hysteria regarding the “rescue” of the sites, but I think we should be bolder. A flooded area does not necessarily represent the destruction of the site. It was never shown that a site is destroyed if it is flooded. In fact, we can even imagine that the opposite occurs. Perhaps a flooded site suffers from over-preservation, that is, it will take a few hundred years before anyone has access to it again. Is this really a problem? Is it really necessary to hasty dig the sites and fill technical reserves with materials whose study is unlikely to yield much, given the quality of the record? Even if the record is wonderful, every archaeologist knows that there is nothing with more informative potential than a site that was not excavated. All excavation implies the destruction of evidence. It would be better to get good samples, including dating samples, and leave most of the site preserved and at peace under water. Once I proposed it to a team that was working on a large dam in Central Brazil. There was a rock shelter full of rock art right on the riverbank. This shelter was going to be flooded away. I proposed: as it will be flooded, why not try to put some kind of polymer sealant on top of the paintings, and tie a buoy with a chain to mark the location of the shelter? When the water rises, this would be a floating guide, and the condition of the paintings could be monitored by divers. It could be a pilot study to see the role of water in the paintings, and the role of different polymers in their protection. This could serve to think about protective actions in the future, since dams will continue to be built and there will always be shelters with cave paintings. But no, this kind of innovation takes work. The cost would be no problem, since the state-owned company spent more money on other things infinitely more expensive. Buying some polymers and tying a buoy would be nothing in comparison. Too bold, too innovative.

In fact, my own experience is that in situ preservation is the most difficult thing to achieve for the sole reason that the IPHAN itself has proven refractory to the idea. I do not know if this attitude has changed, but several years ago I had an experience that to me seemed to be hitting a wall. I was a technician at the Department of Cultural Heritage, São Paulo City, for many years and once had a problem related to a prehistoric site with lithic material found at Morumbi, one of the neighborhoods with the most expensive square meter in the city. The fact that this place still existed was a miracle. It had been detected by a German-born engineer who worked on the implementation of a housing development in the 1970s. He not only realized that there was flaked material in the place but also collected pieces and made a sketch of the location. Later he donated a box full of archaeological material, with the sketch to the Museum of Archaeology and Ethnology/USP, where today I work. This material was in technical reserve for many years, until Dr. Dorath Uchôa mentioned its existence. I went after the box, which was a real coffin, and I found this little treasure: a few hundred lithic pieces and a map showing how to get there. The streets had no name, but there was a reference to a sports club. Finding the location of the club, it was only following the street. To my utter amazement, the site was a vacant lot! It was a large outcrop of flint, with thousands of flakes and cores everywhere. Because of the uniqueness and the possible antiquity of the place, I believe that would be the most important site of the municipality. After that, to make a long story short, there was an excavation with the collection thousands of pieces and the definition of testimony block. It all seemed more or less well until the (very dishonest) owner sold the land to a third party without warning there was an archaeological site on it. This third party destroyed almost everything, had house foundations in place, etc. A team of archaeologists was hired, did some survey, and issued a report saying that the site was totally destroyed. After the work was done I, as a technician, went there, opened a 1 × 1 survey and found that about 4 m2 of the site were still intact. In negotiation with the IPHAN, I argued that those poor and precious 4 m2 should stay there. There was no point in digging them because it would have to be done in a hurry, and the result would be a few more hundred kilograms of material in technical reserve. That small tract of land should stay there, under a concrete slab with an information plaque, even under a house, to be (re) discovered by someone 150 years or more from now. It would be better than producing a few more crates of flakes. All in vain, IPHAN did not want any site in that location, neither the owner. They hired the same team to excavate the remnant 4 m2. There is no Morumbi lithic site anymore. Problem solved.

Here comes another example. In 2012, a colleague who works with contract archaeology asked me to coordinate a survey in a large, high-end housing development project. This area had, so far, only had information about ceramic sites, despite the great urbanization and a large number of contract archaeology work on roads. In the area of the housing project, we found two sites with flaked stone located on the tops of two hills. It was totally unexpected, especially since the material was buried more than 50 cm, despite being near the watershed. It was supposed to be very old, in addition to constitute totally unprecedented data.

Once the presence of these two sites was reported, the entrepreneur opened a bidding for so-called “rescue” (which is a horrible name, as if the place were someone´s hostage. Hostage from whom? From the ground?). I told my colleague that as my academic interest fell into Paleo-Indians, and since the sites were potentially old, I would give up my fees to coordinate the excavation. She would only have to pay the technicians. Well, not even with this condition she could beat the price requested by the competitor, and therefore the excavation of the sites was carried out by another team. After a couple of years, the entrepreneur came into new contact with my colleague, very upset, and said that he was feeling cheated, because the other contract archaeology company found a much denser site than expected, the excavations were taking too long, they were asking a series of financial additives, and everything was much more expensive and time-consuming than anticipated. In short, the entrepreneur wanted my colleague to continue the excavation. I told her that I was still interested but my first action would be to ask for a meeting and propose the immediate stop of the excavations, with the housing plan modification and deployment of a public square in the place of the site. Simple like that. The site not only had more than 8000 years, as it had a lot of arrowheads. It was, without a doubt, one of the most important sites of São Paulo state. Well, given that message, the entrepreneur chose to continue with the previous company. The site was totally excavated, and today there is a road cut of more than 10 m depth through which an avenue stands. All these problems between the entrepreneur and the archaeologists were brought to IPHAN . Apparently, nobody thought about the possibility of in situ preservation. Problem solved.

The panorama that we have in terms of the mitigation of impacts in the archaeological record in Brazil is that everything must be excavated. Certainly, it seems appropriate for everyone. From the entrepreneur’s point of view, the archaeological site ceases to be a legal impediment and becomes a lot of boxes in a technical reserve. The entrepreneur will never have to worry about that. From the point of view of the public heritage management organs, the in situ preservation means more work because it entails monitoring to ensure that the sites are not going to be destroyed, either intentionally or unintentionally. When a site is destroyed, the Public Ministry sues the IPHAN. From the archaeologist’s perspective, you gain more money digging the whole site than digging just a sample and proposing the in situ preservation. Besides, the archaeologist feels compelled to please the entrepreneur who, as we have seen, prefers to get rid of it as quickly as possible.

5 Scientific Outreach

Finally, my last point concerns the dissemination of knowledge raised by contract archaeology . In my view, the transmission of this knowledge is a total failure. The idea that the obligation of educational initiatives is enough to ensure public outreach is a distortion. The educational initiatives are important, insofar as they affect the surrounding people’s work and the workers involved but, in terms of science communication, it is insignificant. The same goes for those flyers, brochures, and so on, to be distributed in schools. All right, it is cool, but it is more of the same. They are something like this: “Here in the region, we have traces of people who hunted and collected, as well as people who had agriculture. These hunters lived here around X one thousand years (guess an age), and potters groups appeared around 2000 years (educated guesses based on data from elsewhere).” In sequence, a picture of an arrowhead, some pottery, a groundstone axe. After this, a section entitled “The work of the archaeologist”, with some photos showing people kneeling on the dirt in an area full of interwoven strings. The reader probably should think, “huh?”.

True knowledge outreach can only be done, first, if there is good old publication in scientific journals. It is from there that archaeologists and non-archaeologists can make sense of the mountain of data being generated, which continues to be buried in cryptic reports found in IPHAN or the State Secretary for the Environment, without the slightest disclosure policy, despite the legal requirement that these data should be publicly available. Although there are digital versions of these reports, one can hardly find something on the Internet. They compose a huge pile of “gray literature” that amounts to nothing. With good (or not so good, but at least any) scientific publication, including analysis and dating, the educators could really provide good quality outreach. The way things are now, this simply cannot be done. So, instead of asking for talks, booklets, and pamphlets, IPHAN should ask for publication of the data, or at least to make the reports available in digital media. This would ensure a real public outreach.

Unfortunately, IPHAN treats academic archaeology as if it was contract archaeology . The most obvious difference is that the first is not for profit. But there is an even more important difference: in the case of contract archaeology, an archaeological survey/excavation project is formulated by an archaeologist, but the only approval is given by the entrepreneur regarding the financial viability. There is no judgment of scientific merit. The project is sent this way for IPHAN on behalf of the archaeologist as a physical or corporate entity. In this case, IPHAN technicians really have to look into the project and check its technical feasibility. For this case, IPHAN publishes a “research permission”.

For academic archaeology, although the project is also produced by an archaeologist, it is presented to IPHAN by an institution. In this process, the project passes by (at least) two judgements: first by the institution that sends it, because in this case the presentation of the project by IPHAN is institutional, not personal; and second, more importantly, it passed the scrutiny of anonymous referees attached to the granting agency which finances the project (CNPq, FAPESP, etc.). In this case, it makes no sense that IPHAN should worry about the scientific merit of the project, but only about minor technical aspects, such as where is the research area, or where the archaeological material is going to be stored. Indeed, in this case, IPHAN publishes a “research authorization”, because it goes under the auspices of a research institution, and not on behalf of a physical/legal person. Thus, the bureaucracy regarding the approval and publication of research authorizations, linked to academic projects, should be much smaller, within decent deadlines and without straining the technicians of IPHAN , which already have enough work to do. However, it is not uncommon for an academic researcher to wait for months for the publication of a research authorization, as if the academic researcher were in the same business as a contract archaeologist, under the same rules and objectives. The law is clear when it makes a distinction between academic and contract archaeology but, in practice, everybody goes to the same vault. IPHAN should consider that, at the end of the day, the real archaeological knowledge is being generated by the good old academy, who (tends to) publish results more often and in widely available ways. To ensure that academic fieldwork research can be done quickly and smoothly should be IPHAN´s major concern, in order to provide data educators can use in their outreach efforts.

6 Some Final Thoughts

6.1 Who Is the Boss?

One thing that needs to get into people’s heads, and that maybe IPHAN should make it clear, both for the entrepreneur and for the archaeologist, is that the archaeologist is not working for the entrepreneur. The archaeologist is paid by the entrepreneur, there is a contract, etc., but he is rendering a service to the government, more precisely to the licensing agencies. The entrepreneur, in this case, is only the person who transfers the money to the archaeologist. It is not the archaeologist´s boss. Unlike an engineer or an architect, who effectively work for the entrepreneur, the archaeologist is outside the professional circle responsible for the planning, preparation and implementation of the work. He is working for the licensing agencies (or, ultimately, for the society who pays the taxes), who wants to know if the work will destroy or not archaeological sites. If the mindset is that of a relationship between employer and employee, of course the archaeologist feels obliged to please those who are paying. But in fact, this relationship does not exist. This confusion gets to the point where archaeologists sign contracts stating that the archaeological information is classified! This is absolutely against the law, but people feel compelled to sign, and IPHAN apparently does not intervene. No data coming from contract archaeology shall be considered as classified, unless perhaps the exact location of the sites, in order to avoid looting. There is no point in signing a contract with such clause.

6.2 Is This the Boss? (or, a Tragic-Comic Note)

To finish up, going back to that issue of law and how to circumvent it, once I was in an audience made up of hundreds of people at the end of a Brazilian national archaeology conference, and I heard firsthand from the mouth of a high-ranking representative of IPHAN , the following phrase: “the law? Now, this mystery…” That was the answer when somebody in the audience questioned about the fact that he stated to the members of some indigenous group that “any representative of a Native American group could excavate archaeological sites located on their land, by the time they wanted, when they wanted and without having to be archaeologists”. I thought, “but wouldn´t they need IPHAN´s authorization? Or at least some archaeologist to supervise the work?” Apparently not. The IPHAN representative thought the law was a mystery. That was great news for me, since part of my DNA is Amerindian, mitochondrial Haplogroup B. Poor strictly European-descendant colleagues, would have to bow to the law…