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

This repeated practice created what the Civil Rights doctrine refers to as common law.
The common law is also a source of law 39 and can be defined as the group of rules that originate
from a generalized social practice over time, which is incorporated with the animus or conviction
of obligation by a determined society. Since contracts and other civil acts undertaken by
indigenous people are generalized and repeated, with no objection from society or the State, we
can confirm that a legal recognition exists regarding the full civil capacity of indigenous people,
corroborating statements made in the Federal Constitution.
Therefore, even though Art. 42 of the Indian Statute is understood to be in effect,
indigenous peoples and their organizations should not need to solicit authorization from Funai,
or any other agency, in order to exploit or stop exploiting their forests, or to sell or not sell
carbon credits resulting from the correct management and protection of the forests. However,
although it is not a requirement, we suggest that Funai be informed about any new project in a
timely manner.
On Activities Undertaken with Non-Indigenous Partners
Another issue emerging from the analysis of indigenous peoples’ capacity regarding the
ownership and negotiation of benefits derived from forest projects on their lands is the possibility
of carrying out such projects in partnership with non-indigenous people or even with indigenous
people from other regions. This could lead to the creation of a joint- ownership regime formed
with the existing titles. To illustrate this, we shall consider a real case study.
For some time, there have been doubts as to whether the indigenous are able to market
the natural resources on their lands and if the Constitution would only guarantee their use for
subsistence or for direct consumption, forbidding their appropriation by third parties, even
when consented and onerous. 40 This doubt resulted from an ambiguous interpretation of the
constitutional text, which linked exclusive usufruct to exclusive consumption. By stating that
39 Law Decree 4657/42, Art. 4. (Law of Introduction to the Civil Code).
40 It is set forth in Article 3-A added to the Forest Code (Law 4771/65) through Provisional Order 2166/2004 that
the exploitation of forest resources on indigenous lands may only be carried out by the indigenous communities
through sustainable logging, to meet their subsistence demands, pursuant to Articles 2 and 3 of said Code.
Nevertheless, there has been a consolidated understanding that the indigenous exploitation of resources on
their lands is not limited to the traditional activities directly linked to their livelihood. The principle of nondiscrimination,
ratified by the Federal Constitution of 1988 regarding indigenous peoples, is applicable here since
it recognizes the autonomy of indigenous societies’ social organization, respecting and protecting their assets.
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 99