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

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Article 34 of the Indian Statute (Federal Law nº 6001/73) and Article 1 of Law 5371/67 35 confer to Funai the power to oversee and protect the use of natural resources found on indigenous lands, with the objective of guaranteeing the exclusive usufruct of the resources to indigenous peoples. This protection is initially related to the combating of illegal actions committed by third parties on indigenous lands, such as timber theft or any form of trespassing. Along these lines, Federal Decree 5758/06 establishes the National Strategic Plan for Protected Areas (PNAP) and defines its general objective “to establish a national program for the conservation and sustainable use of the biological diversity found on indigenous lands”. Some form of cooperation among the involved agencies should exist in order to satisfactorily protect indigenous patrimony (Funai and the Federal Police) and to conserve the environment (Ibama and state environmental agencies – OEMAs) with the goal of formulating and implementing an environmental conservation program on indigenous lands. Analyzing this conjecture carefully, we conclude the following: according to the stated legal principles, the state police’s scope of action regarding indigenous lands should focus on illegal deforestation carried out by third parties or, in some cases, by indigenous individuals. Traditional activities developed by indigenous peoples are protected by law and can be developed free from restraints; therefore, the prohibition of deforestation is restricted to the cases of nontraditional practices by indigenous peoples. Thus, it should be the State’s responsibility, theoretically, to prevent third parties from stealing or in any way degrading the natural resources on indigenous lands. However, this responsibility is not exclusive to indigenous cases. Conversely, as set forth in Art. 225 of the Brazilian Constitution, as well as in Federal Law nº 6938/81 (Law of the National Environmental Policy), it is the public authority’s obligation to oversee the use of environmental resources and prevent illegal activities anywhere in the national territory, including on private lands, supporting each person’s right to an ecologically balanced environment. The consolidated 35 Art. 1 – The Federal Government is authorized to create a foundation, with its own patrimony and legal personality, under the terms of the civil law, denominated “National Indian Foundation”, with the following purposes: I – to establish guidelines and to ensure compliance with indigenist policies, based on the principles listed below: (...); b) security of permanent tenure of the lands they inhabit and the exclusive usufruct of the natural resources and all the utilities therein; (...) II – to manage the indigenous patrimony, towards its conservation, extension and appreciation; (...) VII – to make use of the police power in reserved areas and in matters related to indigenous protection. 92 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
jurisprudence of the Superior Court of Justice, as demonstrated by the following precedent, expresses similar views: CIVIL PROCEDURAL. ENVIRONMENTAL. INTERLOCUTORY APPEAL IN PUBLIC CIVIL PROCESS. LEGITIMICY OF SÃO PAULO STATE TO BE PLACED AS DEFENDANT. OPINION APPEALED ACCORDING TO THE STJ JURISPRUDENCE. SUMMARY 83/STJ. OFFENSE TO ART. 535 OF THE CPC REJECTED. 3. The conclusion registered a quo by the Court is aligned with the jurisprudence of this Superior Court of Justice, oriented towards recognizing the standing to be sued aspect of the legal entity of public law to be placed in a process aimed at accountability for damages caused to the environment as a result of omissive conduct regarding the duty to supervise. Equally, it is consistent with the constitution, which sets forth, in Art. 23, VI, the shared competency of Union, states, the Federal District and municipalities with regards to the protection of the environment and the fight against any form of pollution. And also, Art. 225, (heading) also of the FC, which establishes every person’s right to an ecologically balanced environment and imposes on the government and the collectivity of the obligation to defend and preserve it for present and future generations (AgRg no Ag 973577 / SP). It is therefore incumbent on the public authority to protect any and all forests within Brazilian national territory, its responsibility being not only to regulate their use, but also to exercise its police power to restrain and prevent illegal usage. For example, if an individual clears an area illegally, he will be subject to criminal and administrative charges, and the activity, if discovered in time, may be embargoed by the administrative authority and all the equipment used in the criminal act will be subject to seizure, as per Federal Law 9605/98. For this reason, the State has been improving deforestation monitoring techniques, making use of even more sophisticated technologies in order to remotely identify new deforestation and punish those responsible. In this sense, there is no difference between the inspection carried out on indigenous lands and that carried out in other areas of the country. The State’s obligation to prevent invasions and deforestation exists for both indigenous lands and private property. Thus, if the state’s act of monitoring were enough to confer the State (Union, states and municipalities) the ownership, albeit partial, of carbon credits derived from REDD+ activities on indigenous lands, then the same should occur on private areas. Such a consideration is unreasonable since this monitoring 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 93
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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
Page 44 and 45: On the other hand, the Colombian le
Page 46 and 47: “the special norms which regulate
Page 48 and 49: framework of ecological function an
Page 50 and 51: 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 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 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 and 144: of exploitation or use, and belong
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alignment with the Brazilian consti
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