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

forms.” 41 In this role, their tradition of the sustainable use of natural resources, including
conservation of native forests, is paramount.
Another possible argument towards the alleged ownership of REDD credits by the
Union seeks to combine the definition of Brazilian Indians’ land as “Goods of the Union” (“Bens da
União”) 42 with the concepts of “legal nature of forest resources,” as stated in the Brazilian Forest
Code, 43 and “the social function of the rural property,” as stated in the Federal Constitution44 and
the Brazilian Civil Code. 45 This interpretation would favor the concept of public ownership of
forest resources (even those located in private land), allocating to the Union the their economic
benefits. The applicability of such an argument over private land is outside of the scope of this
paper. Suffice it to say, however, that such arguments would not impact the Brazilian Indians’
rights herein discussed. As stated, the hybrid nature of the Brazilian Indian lands comprises a
sui generis legal proprietary regime, whereby the exclusive usufruct by the Brazilian Indians is
explicitly recognized by the Brazilian Constitution.
In that respect, the fact that the land (including the native forests) traditionally occupied
by Brazilian Indians belong to the Union does not impact their rights herein discussed, which
derive from their original rights over such lands and their exclusive usufruct rights. With respect
to the extension of their usufruct rights, it is important to note that the expression “the richness
related to soil, rivers and lakes which exists within them” stated in Art. 231, paragraph 2 of the
Constitution shall be interpreted in the broader sense and does include forest resources located
on their land. The exceptions to the concept of “soil” embedded in the Federal Constitution are
expressly stated in Art. 176, which reads as follows:
Art. 176: Mineral deposits, whether being exploited or not, and other mineral resources
and hydraulic energy potential represent property separate from the soil, for purposes
41 Supremo Tribunal Federal (Brazilian Supreme Court) Pet 3.388, Rel. Min. Carlos Britto, julgamento em 27-8-08,
Plenário Informativo 517.
42 Brazilian Constitution, Art. 20,XI.
43 “Artigo 1º, caput: As florestas existentes no território nacional e as demais formas de vegetação, reconhecidas de
utilidade às terras que revestem, são bens de interesse comum a todos os habitantes do País, exercendo-se os direitos
de propriedade, com as limitações que a legislação em geral e especialmente esta Lei estabelecem.” [Article 1, main
section: The forests that exist in the national land and other types of vegetation, recognized as the ones which are
useful to the lands they cover, are common interest goods, with the rights over the lands, subject to some legal
limitations established in law and in the Forest Code in particular].
44 Federal Constitution, Art. 186. c.c. Art 5, XXIII.
45 Brazilian Civil Code (Law 10,406/2002), Art. 1.228, paragraph 1.
140 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