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

and degradation 6 (REDD) on their lands. It relies upon two legal opinions 7 commissioned by
Forest Trends in their capacity of assisting the Surui Community in coordination with Associação
Metareilá do Povo Indígena Surui (the Brazilian non-profit organization headed by Mr. Almir
Surui, one of the Chiefs of the Surui Community).
Our legal analysis used as point of departure the international and national regime on
climate change, in order to establish that there is no impediment to the direct participation
of Brazilian Indians in the implementation of Greenhouse Gas (GHG) emissions reductions,
sequestration or conservation projects. 8 In particular, we focused on market-based mechanisms
such as the Clean Development Mechanism (CDM) under the Kyoto Protocol or projects
under the unregulated voluntary carbon market. This initial analysis was complemented by
the review of related international principles, soft law and conceptual developments such as
the International Labor Organization 169, 9 the United Nations Declaration on the Rights of
Indigenous Peoples10 and The World Bank11 which have increasingly recognized “indigenous
peoples” rights for self-determination and their responsibility for protecting their lands,
resources, and culture.
The confirmation of a lack of existing limitations for the participation of “indigenous
people” in GHG projects under international regulations (and the related regulations for project
development approval by the Brazilian Designated Authority under the Kyoto Protocol) set the
stage for a thorough analysis of the Brazilian Legal Regime regarding Brazilian Indians’ proprietary
and self-determination rights. We looked at, in particular, the Brazilian Indians’ constitutional rights
and obligations in connection with the sustainable use and fruition of their lands and related
natural resources, and the possible recognition of their ownership over carbon credits generated
6 The proposed Suruí REDD Carbon project involves approximately 240,000 hectares of land.
7 Our legal review was based on descriptions of the project provided by Forest Trends and assumptions herein
stated. Our work did not include any legal due diligence of the project and this article should not be taken as legal
advice with respect to the project.
8 In light of the United Nations Framework Convention on Climate Change - UNFCCC and the Kyoto Protocol, and
related national regulations devoted to its implementation in Brazil, such as the Interministerial Commission on
Global Climate Change Resolutions.
9 ILO Convention 169 – “Convention Concerning Indigenous and Tribal Peoples in Independent Countries”, as
ratified by Brazil on July 25, 2002 and internalized by Federal Decree Nº 5,502 on April 19, 2004.
10 Adopted by the UN General Assembly in 2007.
11 World Bank Operational Manual Statement (OMS) 2.34 of 1982, consecutively replaced by Operational Directive
(OD) 4.20 of 1991 and Operational Polices (OP) and Bank Procedures (BP) of 2005, particularly OP 4.10.
126 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