Avoided Deforestation (REDD) and Indigenous ... - Amazon Fund

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indigenous peoples could only have use of the natural resources, the Constitution was interpreted to mean that they could not sell such resources, nor turn them over to a third party. However, such reasoning distorted not only the notion of usufruct but also the very concept of the constitutional text which, far from imposing unreasonable restrictions or excessive guardianship, sought to guarantee indigenous communities the possibility of using the resources on their lands as they see fit, avoiding the possibility that third parties might take possession of them as has been the case since the beginning of the national territory’s colonization. Article 24 of the Statute of the Indian (Federal Law 6001/73) determines the framework for the exploitation of natural resources on indigenous lands and guarantees indigenous peoples their exclusive usufruct. It comprises the right to ownership, use, and perception of all the possible functions of their occupied lands, including products resulting from the economic exploitation of natural resources. On this point, renowned Professor Marés clarifies that the notion of exclusive usufruct of indigenous lands and their natural resources does not forbid the indirect use or the provision of external and contracted labor to exploit the territory’s resources. He highlights the collective nature of said indigenous exclusive usufruct right: “Exclusive usufruct only means that it is nontransferable to any individual and that the products resulting from any use or work or income shall always be shared, belonging to the indigenous community that may collectively use them.” 41 Today, there is no doubt that in Brazil indigenous people, as other citizens, may market the goods produced on their lands if they also observe the general rules concerning environmental protection that apply to everyone. In the case of the Forest Management Plan for the indigenous land Xikrin of Catete in the state of Pará, 42 the President of Funai submitted an opinion confirming that the indigenous people could indeed exploit their natural resources in non-traditional ways. The president of the State indigenous body stated that the Xikrin management project truly represented an alternative to illegal and predatory exploitation of the forest riches found in indigenous areas. He explained, “The constitutional text did not intend to restrain indigenous communities in economical straitjackets, withholding from them all possibilities of obtaining a minimum level of autonomy through their own means and resources.” 43 Therefore, saying that 41 SOUZA FILHO, Carlos Frederico Marés. O Renascer dos Povos Indígenas para o Direito (The Rebirth of Indigenous People to Law), Curitiba:Juruá, 1999, p.122. 42 Indigenous Land Xikrin of Catete, ratified by Presidential Decree nº 384 of December 22, 1992. 43 Ruling from the President of Funai from April 12, 1996, in Process 1376/96, item 3, p.93. 100 Av o i d e d d e f o re s t A t i o n (redd) A n d i n d i g e n o u s p e o p l e s: experiences, chAllenges A n d o p p o r t u n i t i e s in t h e A m A zo n c o n t e x t
indigenous peoples are prohibited from commercializing their resources – including carbon credits generated by forest projects – would represent an unjustified discrimination, which is prohibited not only in the Brazilian Constitution (Article 5), but also in ILO Convention 169, the UN Convention on the Elimination of All Forms of Racial Discrimination, and the American Convention on Human Rights. Indigenous peoples have the right to free, prior and informed consent regarding decisions on matters pertaining to them. In this same report, Funai states that, although indigenous usufruct differs from common civil usufruct, it also (to regular civil usufruct) retains the essential nature of material right and therefore admits the constitution of a personal right upon itself (...) and here lies the possibility of renouncing the exercise of usufruct, be it free or onerous.” 44 Therefore, if the projects on indigenous lands are to be executed by indigenous peoples in economic partnership with third parties, there might be, by contractual arrangement and free, prior and informed consent, a division of the credits generated by common activities, as in any other partnership based on the economic use of forest resources. As previously seen, the protection of indigenous lands in Brazil, with the guarantee of permanent tenure and exclusive usufruct, is crucial to ensure the physical and cultural survival of indigenous peoples, and should always respect their social organization, customs, and traditions, in addition to their self-determination. Thus, this special protection must not restrict indigenous peoples’ rights and freedoms in any way, let alone affect their decision-making power and control over their property. This, however, in no way implies the shared use of forests, which is exclusive to indigenous peoples by constitutional determination. No partnership may presuppose that the control over forest use be carried out by anybody other than the indigenous communities, nor may it ever prohibit them from using or inhabiting such areas. Indigenous peoples can voluntarily hand over their right to deforest and develop areas for an alternative use of the soil, as will be seen below, but they cannot contractually commit to the cessation of their traditional activities (such as hunting, fishing, clearings for planting and villages or houses etc.), particularly when the contracts are long-term and involve future generations. Under no circumstances can the forest or indigenous lands be offered as collateral to guarantee the contract’s fulfillment, because these are unalienable, unseizable, and unavailable for third party use as seen above and by express constitutional determination. 44 Ruling from the President of Funai from April 12, 1996, in Process 1376/96, item 5, p.93 Av o i d e d d e f o re s t A t i o n (redd) A n d i n d i g e n o u s p e o p l e s: experiences, chAllenges A n d o p p o r t u n i t i e s in t h e A m A zo n c o n t e x t 101
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Avoided Deforestation (REDD) and In
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Avoided Deforestation (REDD) and In
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Summary Introduction Raul Silva Tel
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Amazon region is currently the pref
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Indigenous Lands and the Climate Cr
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“Amazon biome,” which does not
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approximately 13 million hectares,
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The tables below display data regar
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In practice, the main decisions reg
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Nogueira, EM., Fearnside, PM., Nels
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22 Av o i d e d d e f o re s t A t
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Given the absence of legal definiti
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internal debates on this issue, pre
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which they have traditionally owned
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which Bolivian legislation calls
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consultation” in its articles 30.
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are also facilitated by the strong
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legal risk that these lands can be
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has the duty (and exclusive compete
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derived from them, such as from the
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On the other hand, the Colombian le
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“the special norms which regulate
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framework of ecological function an
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The law permits and stimulates refo
Page 52 and 53: the use, enjoyment, control, admini
Page 54 and 55: One of these bills relates to the e
Page 56 and 57: the constitution which still has no
Page 58 and 59: Since there is not a specific law r
Page 60 and 61: communities of the sierra and jungl
Page 62 and 63: the lands that they possess and tha
Page 64 and 65: and legal instruments to guarantee
Page 66 and 67: those recognized “in internationa
Page 68 and 69: limitation for implementing eventua
Page 70 and 71: REDD in Venezuela Since REDD mechan
Page 72 and 73: to implement REDD projects with bec
Page 74 and 75: Can IPs dispose of the forestry res
Page 76 and 77: Ecuador Yes. However, it will be ne
Page 78 and 79: to reductions in GHG emissions and
Page 80 and 81: did not establish any mechanism to
Page 82 and 83: On the other hand, there is a growi
Page 84 and 85: the co-existence of diverse culture
Page 86 and 87: In accordance with this internation
Page 88 and 89: Indigenous Peoples as Protagonists
Page 90 and 91: e considered a security under Brazi
Page 92 and 93: cannot dispose of the lands they tr
Page 94 and 95: Article 34 of the Indian Statute (F
Page 96 and 97: is a legal obligation and there is
Page 98 and 99: State or to third parties. Since ca
Page 100 and 101: equired for the acts of civil life,
Page 104 and 105: Indigenous Collective Ownership Fin
Page 106 and 107: of their interest is indivisible (L
Page 108 and 109: equired before the benefits may be
Page 111 and 112: The Surui Project: Building Indigen
Page 113 and 114: has decimated much of their forest.
Page 115 and 116: Reducing Risks: Framework for Proje
Page 117 and 118: Michel Pellanders/Hollandse Hoogte,
Page 119 and 120: evitalization. Therefore, the REDD
Page 121 and 122: Volume: To assess the volume of the
Page 123 and 124: 2009). The Surui are also engaging
Page 125 and 126: will be critical, given that eventu
Page 127 and 128: Legal Aspects of the Surui Carbon P
Page 129 and 130: from afforestation, reforestation,
Page 131 and 132: of representing their respective co
Page 133 and 134: they are entitled to participate in
Page 135 and 136: In the case of Brazil, the prolifer
Page 137 and 138: • Article 11, IV of the referred-
Page 139 and 140: Sole paragraph. The rule of this Ar
Page 141 and 142: constitutional rights of Brazilian
Page 143 and 144: of exploitation or use, and belong
Page 145: alignment with the Brazilian consti
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