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

has the duty (and exclusive competency) 39 to consult the indigenous communities potentially
affected before authorizing such ventures. 40
Despite the constitutional declarations and doctrinal interpretations, there is not
clarity regarding the true extent of the autonomy of indigenous people with regards to the
management of their natural resources. The infra-constitutional legislation, which refers to the
management of natural resources and the legal regimen applicable to indigenous people, 41 has
not been revised and updated with the constitutional framework of 1988, which permits the
coexistence of many norms which conflict with the new constitutional provisions. This causes
ambiguous interpretations, principally, regarding the rules for economic uses that are different
from traditional uses, which indigenous people carry out in their territories.
Thus, the currently one finds law which defines indigenous lands as permanent preservation
areas in which, according to modifications included in 2001, 42 indigenous communities can carry
out the exploration of forest resources limited to a sustainable forest management regime
for their subsistence needs. 43 Thus, even though indigenous lands are considered permanent
Congress, and after the affected communities have been consulted, thus assuring their participation in the results
of the exploration, in the form of the law).
39 st Brazil, Federal Regional Tribune of the 1 Region, Report of Judge Selene Maria de Almeida Interlocutory Appeal
No 2006.01.00.017736-8/PA, Federal Public Ministry v. IBAMA et al., State of Pernambuco, 2006, page 6 “The
Consultation is done directly with the community involved in the construction project. The National Congress has
the exclusive competence to carry out the consultation, as only it has the power to authorize the work. Article 231,
§3 of the FC/88 conditions the authorization to hearsay.
40 This is the only instance in which the FC refers to an institution similar to the consultation. In fact, once ILO
Convention 169 and UNDRIP were ratified and incorporated, the consultation mechanism which is referred to
in the 3rd paragraph of article 231 should be interpreted in terms of the right to consultation and free, prior and
informed consent of which these international instruments speak.
41 The current indigenous rights law is called the Indian Statute which was issued in 1973 under the conception
of the tutelary State regime relating to the indigenous people and the Brazilian State. Currently, a bill which seeks
to update the indigenous rules in the new constitutional framework; however, this bill has been in the National
Congress for more than 14 years.
42 Article 3-A: The exploration of forest resources in indigenous lands can only be done by indigenous
communities under a sustainable forest management regime and to meet their subsistence needs, as stated in
Articles 2 and 3 of this Code. Article included by the Provisory Measure No 2.166-67 of August 24, 2001 in the
Forest Code, Law 4771 of 1965.
43 The definition of the Sustainable Forest Regime according the Brazilian legislation is limited to the
“administration of the forest to obtain economic, social and environmental benefits, respecting the supporting
mechanisms of said ecosystem for management and considering, cumulatively or alternatively, the use of multiple
wood species, multiple non-forest products and sub-products as well as the use of other goods and services of
natural forest.” Item VI of the 3rd Article of law 11.284 of 2006.
38 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