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

equired for the acts of civil life, that is, practicing legal acts of substantive law (CC,
Arts. 9 and 13)’ and ‘the only people without procedural capacity are those that are
not civilly apt enough to practice substantive legal acts, such as minors and the
mentally ill’ (...), Thus, if the Federal Constitution of 1998 recognized their procedural
capacity, this also implied recognition, in a broad manner, of the full legal capacity
of the indigenous people, their communities and their organizations.” 38
This understanding is reinforced by the right to self-determination, recognized by
Convention 169 of the ILO, incorporated into the national legal order by the power of Decree
5051/2004 and reinforced by the UN Declaration on the Rights of Indigenous Peoples. The right
to self-determination refers to indigenous peoples’ right to control their lives and communities
and to participate in all decisions that affect them within the governing structure of their
national unit and within the territorial integrity of each country. Therefore, this right substitutes
the old regime’s idea of guardianship because it aims to protect indigenous peoples’ autonomy.
Article 15.1 of ILO Convention 169 recognizes indigenous peoples’ right to participate in the use,
administration, and conservation of the natural resources found on their lands. Such participation
should be understood according to Article 26.2 of the UN Declaration on the Rights of Indigenous
Peoples, which moves away from the idea of the State as manager of indigenous patrimony by
recognizing that “indigenous peoples have the right to possess, utilize, develop, and control the
lands, territories, and resources in their possession by way of traditional property or any other
form of occupation or use, just as those that have acquired them in another way.”
In addition to the international laws and constitutional principles that indicate the end of
civil guardianship for indigenous people, it is clear that these people and their organizations have
vast experience in autonomously practicing legal business, without the assistance from Funai or
any other public agency. For example, indigenous people from many parts of the country organize
themselves into associations in order to manage their collective and individual patrimonies (by
selling arts and crafts, honey, plants, the administration of projects, etc.) without the need to
obtain authorization or assistance from any state body. This demonstrates that these people have
the full and effective capacity to manage their patrimony, which the State explicitly recognized by
contributing funds to indigenous associations by means of pilot projects and as exemplified by
the conventions signed by the National Environmental Fund (FNMA), among others.
38 VILLARES, Luiz Fernando. Direito e povos indígenas (Rights and IndigenousPeoples). Curitiba, Juruá, 2009, p. 60.
98 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