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

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(iii) Associação Metareilá do Povo Indígena Surui, the current representative organization for the Surui, is entitled to represent the four Surui clans (Gamep, Gamir, Makop and Kaban) according to clearly defined and documented limits in accordance with Surui’s social and cultural proceedings of delegation of power; (iv) The proposed project is technically and legally in accordance with Brazilian environmental regulations regarding the sustainable management of forests; (v) Any economic benefits generated by the proposed project will revert to the Surui to be used for (a) forest management, and (b) compensation for opportunity costs associated with the proposed project; (vi) The proposed project shall be validated and monitored by an independent entity. The Brazilian Constitutional Regime From a Constitutional Law standpoint, it is of central importance for this analysis to systematically review the Constitutional regime over Brazilian Indians’ rights and obligations and its integration with the environmental principles and requirements established by the Constitution, which ultimately will govern the forest recovery and conservation objectives of the project. The Brazilian Federal Constitution of 1988 has a special chapter on environmental issues, establishing in Article 225 the right of all to an ecologically balanced environment, which is a common good, essential to a healthy quality of life which both the Government and the community have the duty to defend and preserve for present and future generations. Further relevant requirements are established by federal laws in connection with the environmental protection of natural resources and, in particular, forest management. With respect to the Brazilian Indians legal regime, the major rights Brazilian Indians have on the use of land and its natural resources are established in the Brazilian Federal Constitution, issued in 1988, and the Indian Statute, a Federal law issued in 1973 that remains in force with respect to its requirements that do not conflict with the 1988 Constitution. It is important to note that with the advent of Brazilian Federal Constitution of 1988, the Brazilian Indians rights were dramatically changed vis-à-vis the 1973 Brazilian Indian Statute, specifically regarding the increased autonomy of Brazilian Indians as entitled to independently exercise their rights guaranteed by the Constitution. As a result, the majority of the Brazilian Indians in Brazil have dramatically improved their ability to autonomously exercise their rights and obligations as Brazilian citizens. This is particularly evidenced by the increased proliferation of Brazilian Indian non-governmental organizations (NGOs), created by Brazilian Indians with the specific purpose 128 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
of representing their respective communities and as a preferred vehicle to exercise their legal rights as described by the 1988 Constitution. 16 With regard to Brazilian Indians’ land, Article 20, XI of the Brazilian Federal Constitution establishes that the land traditionally occupied by the Brazilian Indians17 is the Federal Union’s property. This proprietary regime over Brazilian Indians’ land is further regulated by Art. 231 of the Constitution, which also establishes fundamental rights on behalf of the Brazilian Indians: Article 231 - The social organization, custom, language, belief and traditions of the Brazilian Indians18 are recognized, and the original rights under the land which they traditionally occupy, having the Federal Union the competence of delineation, protection and respect to all its goods. First Paragraph: Lands traditionally occupied by the Brazilian Indians are those that they have inhabited permanently, used for their productive activity and their welfare and are necessary for their cultural and physical reproduction, according to their uses, customs and traditions. Second Paragraph: The lands traditionally occupied by the Brazilian Indians are destined to their permanent possession, having the exclusive usufruct regarding the richness related to soil, rivers and lakes which exist inside them (emphasis by author). Third Paragraph: The utilization of water resources, including energy potential, the research and use of mineral resources in the Brazilian Indians’ lands can only be executed under National Congress approval, having heard the affected communities, granted to them the participation in the use, under the law dispositions (emphasis by author). Fourth Paragraph: The lands mentioned in this article are inalienable, are not disposable and the rights under them are not prescriptive (emphasis by author). Fifth Paragraph: It is forbidden to remove Indian groups from their lands except, “ad referendum” of Congress, in the event of an epidemic which represents a risk for their population, or in the interest of Brazilian sovereignty, after resolution by Congress, 16 This phenomena is very well described by the anthropologist Bruce Albert who identified in early 2000 more than 180 associations in the six States of the Northern Region of Brazil (Amazonas, Roraima, Rondônia, Acre, Pará and Amapá) and more than 250 in the so-called Legal Amazonia (which includes parts of the States of Mato Grosso, Tocantins and Maranhão), available at http://www.socioambiental.org/pib/english/orgsi/amazo.shtm. 17 Referred to herein as “Indians lands”. 18 Please note that the original Constitution text uses the Portuguese term “indios” to refer to Brazilian Indians. 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 129
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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
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On the other hand, the Colombian le
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“the special norms which regulate
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framework of ecological function an
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The law permits and stimulates refo
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the use, enjoyment, control, admini
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One of these bills relates to the e
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the constitution which still has no
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Since there is not a specific law r
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communities of the sierra and jungl
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the lands that they possess and tha
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and legal instruments to guarantee
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those recognized “in internationa
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limitation for implementing eventua
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REDD in Venezuela Since REDD mechan
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to implement REDD projects with bec
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Can IPs dispose of the forestry res
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Ecuador Yes. However, it will be ne
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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 94 and 95: Article 34 of the Indian Statute (F
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: from afforestation, reforestation,
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
Page 145: alignment with the Brazilian consti
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