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

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Another important governance element of the project is to guarantee financial returns that are compatible with the environmental services provided by the forestry resources on the Surui land. This goal shall be achieved by using sound methodologies aimed at valuing environmental services to preserve forest resources that take into consideration the long-term benefits derived from reforestation, afforestation and forest conservation, including, but not limited to, a thorough analysis of the price of environmental services (including carbon) on the national and international markets. It is important to note that the sale of credits below national or international average prices may raise concerns among some stakeholders regarding a violation of the Brazilian Indians’ rights. Such concerns may trigger administrative and judicial actions by organizations such as Funai, the District Attorney’s Office (“Ministério Público”) and others who must protect the Brazilian Indians’ rights and have the legal standing to sue under the Public Civil Action Law (“Lei de Ação Civil Pública”). The sale of REDD credits below market prices may also trigger claims on the grounds of an alleged negative impact on the Brazilian national REDD strategy (as a result of which such action may be contrary to national interest) in light of future Brazilian commitments under a Post-2012 Kyoto or UNFCCC regime. In light of those considerations, we recommend that Surui consider sales strategies which allow proper publicity, keep a record of important transactions, and, if possible, take advantage of competition among buyers to sell credits. In that regard, the Surui Community may consider selling the credits through the Brazilian Mercantile and Future Exchange (BM&F/Bovespa) or any other carbon platform which guarantees a credible auction system. With respect to the use of contract instruments for the commercialization of the credits (either ERPAs or VERPAs, depending on the circumstances), it is important that such instruments are compatible with the legal nature of the Surui rights. In that regard, the hybrid proprietary rights over the land and constitutional barriers to any future encumbrance over the land shall be considered. As a result, the parties may have to choose payment structures which condition the disbursement of money with regard to effective reforestation, afforestation or forest conservation. Any early payment by the buyers or any other financing activity cannot be conditional on the securing of any of the natural resources present in the Surui land, or the land itself. Conclusion Based on our assumptions and discussions above, our legal analysis has shown that: The Clean Development Mechanism (CDM) and REDD projects proposed by the Surui are conceptually in accordance with the international and national climate change regime and in 142 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
alignment with the Brazilian constitutional requirements and principles and legislation regarding environmental protection and Brazilian Indians rights. There is no legal restriction under the international and national legal regulations on CDM projects towards the inclusion of the Surui as project participants. The Surui are entitled to the economic benefits of such projects, due to their constitutional rights of permanent possession over their lands and exclusive usufruct and perception of economic benefits resulting from sustainable use thereof. The Surui’s ownership over CERs and VERs generated by the projects is clearly a pre-condition for the fruition of such exclusive economic benefits. The Surui’s legal title over the carbon credits is also consistent with the general rule applied in Brazil whereby credit ownership rights derive from the main rights over the project activities. Considering the Brazilian Constitutional Rights granted to Brazilian Indians, the involvement of the National Indian Foundation (Funai) as a project participant as a pre-condition for validating the acts undertaken by the representatives of the Surui Community is not necessary. However, given the role of Funai in protecting Brazilian Indians’ rights, it is recommended to have Funai’s formal analysis and institutional support to the project as part of stakeholder consultation process. Regardless of the ultimate design of a Brazilian REDD Policy in the near future and its correspondent legal contours, its legality will depend on its alignment with the Constitution, including the Constitutional rights of Brazilian Indians. From a project governance standpoint, due to the uncertainties about a future REDD regime, the inherent permanency and leakage risks of any forestry project, and the need for building up a robust and efficient National Policy, the Surui may consider voluntarily allocating part of the economic results of the projects to be invested in the emerging Brazilian REDD Framework, particularly on law enforcement infrastructure and forestry governance activities that can be implemented by public agencies (such as Funai and other environmental authorities) and private stakeholders. The Surui should prioritize commercial strategies which favor (i) competition amongst prospective buyers and (ii) financial returns compatible with the environmental services provided the projects. Contract instruments, payment conditions, and securitization in connection with the commercialization of the credits (including ERPAs and VERPAs) shall be compatible with the nature of the Surui constitutional rights, which, inter alia, forbids any encumbrance over the land. 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 143
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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
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the use, enjoyment, control, admini
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One of these bills relates to the e
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the constitution which still has no
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Since there is not a specific law r
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communities of the sierra and jungl
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the lands that they possess and tha
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and legal instruments to guarantee
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those recognized “in internationa
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limitation for implementing eventua
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REDD in Venezuela Since REDD mechan
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to implement REDD projects with bec
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Can IPs dispose of the forestry res
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Ecuador Yes. However, it will be ne
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to reductions in GHG emissions and
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did not establish any mechanism to
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On the other hand, there is a growi
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the co-existence of diverse culture
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In accordance with this internation
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Indigenous Peoples as Protagonists
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e considered a security under Brazi
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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
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Page 100 and 101: equired for the acts of civil life,
Page 102 and 103: indigenous peoples could only have
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: of exploitation or use, and belong
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Avoided Deforestation (REDD) and Indigenous ... - Amazon Fund

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